Selling Justice Short

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I. Overview

The long-running debate about whether seeking justice for
grave international crimes interferes with prospects for peace has intensified
as the possibility of national leaders being brought to trial for human rights
violations becomes more likely. The International Criminal Court (ICC) at The Hague, which is mandated to investigate and prosecute war crimes, crimes against
humanity, and genocide, has already issued its first arrest warrant for a
sitting head of state—Sudan’s president Omar al-Bashir. That the
ICC operates while armed conflicts are ongoing fuels the justice and peace
debate. The temptation to suspend justice in exchange for promises to end a
conflict has already arisen with respect to the ICC’s work in Darfur and
Uganda, and threatens to recur in coming years as parties and mediators struggle
to negotiate peace deals.

With the functioning of international criminal courts, national
tribunals, and, increasingly, trials abroad, the context of amnesty discussions
is already very different from several years ago. It is now generally
recognized that international law obligates countries to prosecute genocide,
crimes against humanity, and war crimes. International tribunals and national
courts applying universal jurisdiction are likely to reject de jure
amnesties for the most serious human rights abuses. The trials of Serbian
leader Slobodan Milosevic and Liberia’s Charles Taylor demonstrate that
insulation from prosecution is no longer a certainty for former heads of state.
The expectations of victims for justice have changed in this evolving context.[1]

At the same time, some diplomats tasked with negotiating
peace agreements have argued that the prospect of prosecution by the ICC has made
achieving their objectives more difficult. Those negotiating peace have tended
to view the possibility of prosecution as a dangerous and unfortunate obstacle
to their work. Some fear that merely raising the specter of prosecution will
bring an end to fragile peace talks. Facing understandable pressure to resolve
an armed conflict, negotiators and others often feel pressed to push justice to
one side.

Indeed, to get parties to the table, blanket amnesties have
often in the past been offered to those responsible for horrific human rights
abuses. Supporters of amnesties argue that those bearing the greatest
responsibility for atrocities have no interest in laying down their arms unless
they believe that they will not face criminal charges. This point was made by
the former United States (US) special envoy to Sudan, Andrew Natsios, who wrote,
“They [the leaders of Sudan’s National Congress Party] are prepared
to kill anyone, suffer massive civilian casualties, and violate every
international norm of human rights to stay in power, no matter the
international pressure, because they worry (correctly) that if they are removed
from power, they will face both retaliation at home and war crimes trials
abroad.”[2]
Some claim that fear of accountability is the reason President Robert Mugabe
refuses to relinquish his hold on power in Zimbabwe.[3]
Known war criminals are even sometimes incorporated into government in an
effort to consolidate peace. Often these decisions are made almost literally at
gunpoint by people desperate to end years of violence and upheaval.

Others have argued that while justice is important, it should
take a back seat to peace. ICC Prosecutor Luis Moreno Ocampo’s request
for an arrest warrant against Sudan’s President al-Bashir in July 2008
triggered a backlash by numerous actors, including the African Union (AU) and
the Organization of the Islamic Conference, which asked the United Nations (UN)
Security Council to defer the ICC’s work in Darfur for 12 months. Alex de
Waal and Julie Flint, experts on Sudan, publicly criticized the ICC prosecutor
for pressing charges against high officials in the government of Sudan, stating, “Attempts to deploy UNAMID [the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At this sensitive time, to lay charges against senior
government officials, and to criminalise the entire government, will derail
attempts to pull Sudan from the brink.”[4] They
argued that justice should wait until after those culpable are no longer in
positions of authority, since seeking to prosecute risks retaliation, including
against those who work for humanitarian agencies.[5]
Negotiators and community leaders working for peace in northern Uganda had claimed that the ICC warrants for the rebel Lord’s Resistance Army (LRA)
leadership jeopardized the peace process, and that starting investigations
before the war ended risked both justice and peace.[6]
Variations of these arguments have been used elsewhere.

In the short-term, it is easy to understand the temptation
to forego justice in an effort to end armed conflict. However, Human Rights
Watch research over the past 20 years in many different countries (only some of
which are described in this report) has demonstrated that a decision to ignore
atrocities and to reinforce a culture of impunity may carry a high price. While
there are undoubtedly many factors that influence the resumption of armed conflict,
and we do not assert that impunity is the sole causal factor, Human Rights
Watch research shows that the impact of justice is too often undervalued when
weighing objectives in resolving a conflict.

In addition, in practice the anticipated negative
consequences of pressing for accountability often do not come to pass.
Insisting on justice, for example, does not necessarily mean an end to peace talks
or result in renewed instability as some predict. Peace agreements and ceasefires
in the Democratic Republic of Congo (DRC) did not include amnesty provisions
for war crimes, crimes against humanity, and genocide despite the fear of many
that not granting total amnesty would mean the collapse of negotiations.[7]
In each of the peace talks (1999, 2002, 2006, and 2008), rebels put forward
proposals for broad amnesties covering the worst crimes, but the government
successfully resisted these demands without ending the talks. The inclusion of
provisions for justice in negotiations with the LRA in Uganda that resulted from the ICC’s pursuit of LRA leaders likewise did not scuttle those
peace talks, despite the concerns of many who advocated an amnesty. The fear
that the International Criminal Tribunal for the former Yugoslavia’s (ICTY) indictment of Slobodan Milosevic for crimes in Kosovo during his
negotiations to end the conflict with NATO would impede negotiations also
proved unfounded. Only days after the warrant for Milosevic was announced, a
peace agreement was reached.

Even years after a period of upheaval, some question the
wisdom of bringing justice to those responsible for abuses for fear of the
consequences. Following former Chilean dictator Augusto Pinochet’s arrest
in 1998, some Chilean leaders argued that “a giant bomb has been dropped
on the [democratic] transition”[8] and that
if not overturned soon, the decision “will inevitably create a climate of
instability ... and could lead to a grave deterioration in the national
co-existence it cost us so much to construct.”[9]
However, these forebodings were shown to be greatly exaggerated. The predicted
apocalypse never occurred, and Chileans adapted to the momentous developments
with little overt lawlessness.[10]

Instead of impeding negotiations or a peaceful transition, remaining
firm on the importance of justice—or at least leaving the possibility for
justice open—can yield short- and long-term benefits. Indictments of
abusive leaders and the resulting stigmatization can lead to marginalizing a
suspected war criminal and may ultimately facilitate peace and stability. In
Bosnia and Herzegovina the indictment of Radovan Karadzic by the ICTY marginalized
him and prevented his participation in the peace talks leading to the success
of the Dayton negotiations to end the Bosnian war. Similarly, the unsealing of
the arrest warrant for Liberian President Charles Taylor at the opening of
talks to end the Liberian civil war was ultimately viewed as helpful in moving
negotiations forward. By delegitimizing Taylor both domestically and
internationally, the indictment helped make clear that he would have to leave
office, an issue that had been a potential sticking point in negotiations. He
left Liberia’s capital, Monrovia, a few months later.

Foregoing accountability, on the other hand, often does not
result in the hoped-for benefits. Instead of putting a conflict to rest, an
explicit de jure amnesty that grants immunity for war crimes, crimes
against humanity, or genocide may effectively sanction the commission of grave crimes
without providing the desired objective of peace. All too often a peace that is
conditioned on impunity for these most serious crimes is not sustainable. Even
worse, it sets a precedent of impunity for atrocities that encourages future
abuses. The history of the country situations documented in this report make a
persuasive case that peace premised on a blanket amnesty may be a short-lived
respite before the resumption of further armed conflict and its attendant
crimes. In Sierra Leone, for example, three blanket amnesty provisions in
different accords failed to consolidate the hoped-for peace, and in Angola six
successive amnesties did not lead to the called for “forgiving and
forgetting.” In both places, war and war crimes resumed within a short
period after peace agreements had been reached. The precedent of impunity meant
that would-be criminals had no reason to curtail their unlawful tactics going
forward.

An implicit (or de facto) amnesty may have similar results.
In Sudan, longstanding impunity for the state’s use of brutal ethnic
militias to attack civilians in the south set a precedent that suggested that
there would be no price to pay for similar atrocities elsewhere. This likely factored
into Khartoum’s decision to use the same strategy again with devastating
results for civilians in Darfur. The peace agreement that ended the north-south
civil war did not include provisions for accountability because negotiators
were concerned that raising the issue would disrupt the talks.

In some situations, negotiators feel that turning a blind
eye to crimes is not enough and that alleged war criminals must be granted
official positions in order to persuade them to lay down their arms. However,
we have seen that in places where governments have opted to incorporate such
individuals into the government instead of holding them to account for their
crimes or marginalizing them, the price has been high. Rather than achieving
the hoped-for end of violence, Human Rights Watch has documented how in
post-conflict situations, incorporating leaders with records of past abuse into
the military or government has resulted in further abuses and has allowed
lawlessness to persist or return. In Afghanistan, many of the worst perpetrators
from its recent past were brought under the umbrella of the Hamid Karzai government.
The result has been continuing violence and abuse of power by some of the
warlords who now wield governmental authority. Inclusion of those with blood on
their hands in the new order eroded the legitimacy of the government for many Afghans
and has been used by opponents of the government to discredit it. In the Democratic
Republic of Congo, in an effort to buy compliance with the transition process,
dozens of people suspected of committing human rights violations were given
posts of national or local responsibility, including in the army.[11]
Rather than end the conflict, this has resulted in a proliferation of rebel
groups who see no downside to taking up arms.

Although under the pressure of trying to negotiate a peace
deal justice may seem like a dispensable luxury, there are important benefits
to promoting accountability that are worth consideration. In the longer term,
lack of accountability can be fertile ground for those who seek to manipulate
history to sow seeds of new conflict in order to achieve their own political
ends. Assumptions of collective ethnic guilt rooted in atrocities dating back
to the Second World War were important in enabling ultra-nationalist
politicians in Yugoslavia to divide Serb, Croat, and Muslim communities and to trigger
cycles of intercommunal violence during the conflicts of the 1990s. In Burundi
too, the absence of criminal prosecutions for atrocities committed over a
period of decades contributed to periodic explosions of inter-ethnic strife: members
of each group feared violence—even potential annihilation—by the
other and felt anger for past sufferings. These feelings were then exploited by
those with their own political agenda. Without individualizing guilt, the
notion of collective responsibility for crimes has greater resonance, and it is
easier for blame focused on a group to be passed from one generation to the
next.

The failure of international and regional bodies and donor
states to demand accountability can embolden abusive leaders to commit more
crimes. In Rwanda, a significant contributing factor to the 1994 slaughter was
the willingness of influential governments to overlook crimes that predated the
genocide. In Kenya, by taking little action in the face of consistent and
chronic patterns of impunity that characterized government practice for the
past two decades, international actors contributed to the recurrence of
violence following the 2007 elections.

Fair trials also assist in restoring dignity to victims by
acknowledging their suffering and help to create a historical record that
protects against revisionism by those who will seek to deny that atrocities
occurred. The evidentiary rules used at judicial proceedings, and the
requirement that judgments be based on proven facts, help confer legitimacy on
otherwise contestable facts and make it more difficult for “societies to
indulge their fantasies of denial.”[12] Trials
also bring forward evidence that might not otherwise be disclosed. The
Nuremburg trials performed this important function following the Second World
War. Evidence revealed in the trials became insurmountable obstacles to those
seeking to deny the crimes of the Nazi regime. In the course of its trials, the
ICTY has also accumulated a formidable wealth of documentary evidence and
testimony that can serve as a reference point in years to come and help prevent
revisionist history that can be used to foment conflict.[13]
Of course, trials are only one of a number of tools that can assist in this
process of creating a record and addressing the needs of victims: as important
as they are, they will only address a small subset of crimes. Broader truth-telling
mechanisms, in addition to reparations, vetting, economic development, and
reconstruction are needed as part of the process of moving society forward in a
sustainable way.

Apart from its importance in helping to create a historical
record, we have found that international justice for serious crimes has a
positive impact on the development of domestic enforcement tools. Prosecutions
in courts even far from the places where the crimes occurred have played a beneficial
role in galvanizing establishment of the means in national court systems to
deal with these crimes. The arrest of Pinochet in the United Kingdom (UK) and
the resulting litigation in Belgium, France, Spain, and Switzerland prompted an
opening of the domestic courts in Chile to victims who had previously been
denied access to remedies. Trials of military officers responsible for gross
violations of human rights during Argentina’s “dirty war”
were reopened in Buenos Aires in part because of efforts in Europe to hold them
to account there. The ad hoc tribunals and the ICC have also directly and
indirectly contributed to improved national justice mechanisms or laws in the
countries where they are investigating crimes. The desire to have cases
transferred from the ad hoc tribunals inspired both Rwanda and the countries of
former Yugoslavia to engage in domestic legal reform in order to meet the
tribunals’ standards for transferring cases. In each country in which the
ICC is investigating, steps have been taken—at least nominally—to
start domestic proceedings. Even in countries where ICC investigations are being
considered but have not been opened, efforts have been made to hold
perpetrators to account that otherwise would not have occurred in order to keep
the cases in national courts. Thus, international justice can serve to promote
rule of law and long-term stability.

Finally, given the nascent development of international
criminal justice, we would not expect to see evidence of its deterrent effect.
However, we have seen increased awareness of what constitutes criminal behavior
as a result of ICC prosecutions. This may result in behavioral changes simply out
of fear of prosecution. For example, in the Central African Republic (CAR), a
rebel commander demobilized his child soldiers after learning about the
ICC’s prosecution of Congolese rebel leader Thomas Lubanga on charges of recruitment
of child soldiers, claiming he had not known using child soldiers was a crime.
In the Democratic Republic of Congo, observers also noted the enormous
educational impact of the Lubanga case.

Although this report argues that justice should not be
shortchanged in peace negotiations and that the cost of overlooking impunity is
high, we acknowledge that there is not one formula that is suitable to all situations.
Well-known counter-examples do exist. In Mozambique, for example, there has
been no justice for horrendous crimes committed during a lengthy civil war, yet
it has remained stable since the peace agreement was signed in 1992.

Although South Africa’s Truth and Reconciliation
Commission is frequently cited as an alternative to justice, it is a model from
another era. Established in 1994, it was an advance over previous models of
truth commissions: unlike Latin American truth commissions, the South African
model contained a justice provision. There was no blanket amnesty. Instead
individuals had to apply for amnesty and fully disclose human rights violations
and, in most cases, had to appear before the truth commission in a public
hearing. Only crimes associated with a political objective were eligible, and
as a result most amnesty requests were denied. If the same model were applied
elsewhere now, it would likely be seen as a step backwards by victims whose
expectations for justice have changed as a result of the rise of international
criminal law.

In addition, the South African truth commission’s effectiveness was in part a result of fear of
prosecution, and some trials were held initially. Once the perceived threat of
prosecution was lessened (after a high-ranking official was acquitted), far
fewer senior officials applied for amnesty, thus undercutting the truth
commission’s effectiveness.[14]A weakness of the South African approach was the
failure to set in place a coherent program to prosecute those who were denied or
did not apply for amnesty. The lack of prosecution for crimes continues to be
an issue.[15] On March 19, 2009, a coalition of victim and civil
society groups filed a complaint seeking to prevent the South African president
from issuing pardons for politically motivated crimes without hearing the input
of victims and other interested persons.[16]

Human Rights Watch believes that international law and practice
has evolved over the last 15 years to the point where both peace and justice
should be the objectives of negotiations aimed at ending a conflict where the
most serious crimes under international law have been committed. At the very
least, peace agreements should not foreclose the possibility of justice at a
later date. As Archbishop Desmond Tutu has said, “As painful and
inconvenient as justice may be, we have seen that the alternative—allowing
accountability to fall by the wayside—is worse.”[17]
Even decades after the crimes have occurred we have seen in places like Spain and Argentina that failing to address the past leaves open wounds that still demand attention.

With this report, Human Rights Watch is seeking to put
important facts and analyses on the table to better inform the debate about
accountability and peace. Sacrificing justice in the hope of securing peace is
often projected as a more realistic route to ending conflict and bringing about
stability than holding perpetrators to account. Yet our research shows that
most often out-of-hand dismissal of justice proves to be shortsighted. Those
who call for forgoing justice need to address the facts, some of which are
described in this paper, that contradict their oft-repeated assumptions. Because
the consequences for people at risk are so great, decisions on these important
issues need to be fully informed.

II. State of the Law

In 1999 a British court stated, “The idea that
individuals who commit international crimes are internationally accountable for
them has now become an accepted part of international law.”[18]
That statement is even truer today with the establishment of a standing
international criminal court.

Because the debate about peace and justice is occurring in
the context of an evolving system of international criminal justice, some
background on the state of law is necessary. States have accepted that some
crimes are so heinous that they must not go unpunished. Among other objectives,
prosecuting these crimes is recognized as integral to preventing future
violations of international law.[19] The
duty to prosecute arising from these principles is reflected in both treaty and
customary international law that create an obligation to prosecute those
responsible for serious international crimes, such as genocide, crimes against
humanity, and war crimes. The use of universal jurisdiction and the
establishment of international courts and tribunals demonstrate the commitment
to this principle in practice. Amnesties for these crimes are increasingly seen
as contrary to international law.

A. The obligation in international law to prosecute
serious international crimes

As a matter of both treaty and customary international law, there
is a duty to prosecute serious international crimes or to extradite to a
jurisdiction that will prosecute.[20]

The obligation to prosecute some crimes
derives from international conventions.[21] The
Convention on the Prevention and Punishment of the Crime of Genocide creates a
legal obligation on states parties to take steps to provide effective penalties
for those responsible for genocide.[22] The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment also binds states to prosecute violators.[23]
The Geneva Conventions of 1949, applicable during armed conflict, establish a
duty to provide “effective penal sanctions for persons committing, or
ordering to be committed ... grave breaches of the Conventions.”[24]
Grave breaches include the following when committed against persons who are not
or are no longer taking part in the hostilities: “willful killing,
torture or inhuman treatment, willfully causing great suffering or serious
injury to body or health.”[25]

The obligation to penalize crimes representing violations of
the laws of war was initially considered limited to grave breaches of the
Geneva Conventions, which are applicable only during international armed
conflicts. However, the subject matter jurisdiction of the International
Criminal Tribunal for Rwanda (ICTR) (which includes Common Article 3 of the
four Geneva Conventions and its Second Additional Protocol) and decisions by
the International Criminal Tribunal for the former Yugoslavia indicate
acceptance of the extension of the prohibition to non-international armed
conflicts (civil wars).[26]

This broader applicability of a duty to prosecute war crimes
committed during non-international armed conflicts was recognized by the
International Committee of the Red Cross (ICRC) in its 2005 study of customary
international humanitarian law.[27] The UN
Commission on Human Rights (the predecessor to the current Human Rights
Council) adopted several resolutions calling for the investigation and
prosecution of violations of international humanitarian law in the context of
non-international armed conflicts in Burundi, Chechnya, Rwanda, Sierra Leone,
Sudan, and the former Yugoslavia.[28]

Acceptance of the duty to prosecute as a matter of customary
international law is evident in a number of places. In 1946 the UN General
Assembly during its first session urged that all states, including those not
members of the United Nations, arrest persons responsible for war crimes during
the Second World War and return them for prosecution in the state where the
crimes were committed.[29] A
number of General Assembly resolutions since have reiterated the obligation of
states to ensure the investigation and prosecution of alleged war crimes and
crimes against humanity.[30]

The Rome Statute establishing the International Criminal Court
is an important indicator that the obligation to prosecute serious violations
of international law is supported by customary law. The obligation to prosecute
is expressed in the statute’s preamble:

Affirming that the most serious crimes of concern to the
international community as a whole must not go unpunished and that their
effective prosecution must be ensured by taking measures at the national level
and by enhancing international cooperation...

Recalling that it is the duty of every State to exercise
its criminal jurisdiction over those responsible for international crimes ... .[31]

The obligation to prosecute can also be seen in article 17
of the Rome Statute. Under the principle of
complementarity, national courts not only have the first opportunity to
prosecute international crimes, but an obligation to prosecute them. In
particular, “‘the point to be emphasized is that the competence to
bring the perpetrator(s) of crimes within the jurisdiction of the ICC to
justice remains the prime responsibility of national States[;]’” provided
that the alleged human rights violator is not surrendered to the ICC, a duty
exists for states subject to the jurisdiction of the ICC to
prosecute them in domestic courts.[32] That 109
countries to date have ratified the Rome Statute manifesting an intent to enact
domestic legislation to punish these crimes domestically or to submit the
suspect to ICC prosecution is strong evidence of the widespread recognition of
the duty to prosecute.

The UN Set of Principles for the Protection and Promotion of
Human Rights through Action to Combat Impunity[33]also
points to the emerging trend toward requiring prosecution of the most serious
crimes. The principles, best practices endorsed by the Office of the United
Nations High Commissioner for Human Rights (OHCHR), are intended to serve as
guidelines to assist states in developing measures to combat impunity for human
rights violations.[34] The principles
indicate that states have a duty to investigate “serious crimes under
international law” and to take measures to ensure that those suspected of
criminal responsibility “are prosecuted, tried and duly punished.”
Crimes falling into this category include violations of the Geneva Conventions,
genocide, crimes against humanity, and other violations of international human
rights that are crimes under international law or which international law
requires states to penalize, such as torture, enforced disappearances,
extrajudicial execution, and slavery.

The duty to investigate and prosecute these crimes has also
been recognized in international law at the regional level. The Inter-American
Court of Human Rights has found that a state must “use the means at its
disposal to carry out a serious investigation of violations committed within
its jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation.”[35]

The European Court of Human Rights has similarly ruled that
in cases of serious human rights violations, an effective remedy for victims
may require states to carry out “a thorough and effective investigation
capable of leading to the identification and punishment of those responsible
and including effective access for the complainant to the investigatory procedure.”[36]

In recent years, states have been more willing to put the
obligation to prosecute into practice. “Universal jurisdiction”
refers to the competence of a national court to try a person suspected of a
serious international crime—such as genocide, crimes against humanity, war
crimes, or torture—even if neither the suspect nor the victims are
nationals of the country where the court is located and the crime took place
outside of that country. Human Rights Watch has documented that since 2000
there has been “a steady rise in the number of cases prosecuted under
universal jurisdiction laws in Western Europe, evidencing a heightened willingness
among certain European states to utilize universal jurisdiction.”[37]
States may have been further motivated to use universal jurisdiction in order
to avoid becoming a safe haven for war criminals not likely to be prosecuted by
the ICTY or ICTR. (See also Chapter VII.C, for the impact of universal
jurisdiction on developments in Chile and Argentina.)

B. No amnesty for the
most serious crimes

The trend in international law is that state amnesty
provisions must be considered void if they attempt to amnesty the most serious
crimes because such provisions are contrary to states’ obligations to
combat impunity for serious human rights violations.[38]
Exempting the perpetrators of the worst crimes from prosecution and allowing
these crimes to remain unpunished is increasingly viewed as unacceptable. This
is an important reference point for the place of justice alongside other
objectives when seeking to end conflicts.

A number of countries including the Democratic Republic of
Congo, Côte d’Ivoire, Croatia, Ethiopia, and Venezuela have adopted
legislation or constitutions that prohibit amnesties for the most serious
crimes or that contain explicit exceptions to general amnesties for crimes
under international law.[39] And related
to the obligation under the universal/extraterritorial jurisdiction principle to
prosecute serious international crimes is the rejection of state amnesties in
the courts of other states. As the Sierra Leone Special Court held:

Where jurisdiction is universal, a State cannot deprive
another State of its jurisdiction to prosecute the offender by the grant of
amnesty. It is for this reason unrealistic to regard as universally effective
the grant of amnesty by a State in regard to grave international crimes in
which there exists universal jurisdiction. A State cannot bring into oblivion
and forgetfulness a crime, such as a crime against international law, which
other States are entitled to keep alive and remember.[40]

The ICTY has also indicated that amnesties for
internationally recognized crimes would not be accorded international legal
recognition.[41]

United Nations’ bodies have repeatedly reflected this
position against amnesties regarding the most serious crimes. For example,
regarding the 1999 Lomé Peace Accord, despite the opposition of Sierra
Leone President Ahmad Tejan Kabbah, the UN special representative attached a
reservation to the agreement stating, “The United Nations holds the
understanding that the amnesty provisions of the Agreement shall not apply
to international crimes of genocide, crimes against humanity, war crimes and
other serious violations of international humanitarian law.”[42]
The UN secretary-general also issued a statement that addressed the terms of
the Lomé Peace Accord: “Some of the terms under which this peace
has been obtained, in particular the provisions on amnesty, are difficult to
reconcile with the goal of ending the culture of impunity ... .”[43]

Numerous additional documents and bodies also highlight the
developing legal trend opposing amnesty for genocide, crimes against humanity,
war crimes, and other violations of international humanitarian law.[44]
The Inter-American Court of Human Rights has held that Peru’s blanket amnesty law, which discouraged investigations and denied any remedies to
victims, was invalid.[45] The
Court found that “all amnesty provisions, provisions on prescription and
the establishment of measures designed to eliminate responsibility are
inadmissible, because they are intended to prevent the investigation and
punishment of those responsible for serious human rights violations ... .”[46]

The Inter-American Commission on Human Rights has also found
that amnesty laws in Chile, Argentina, and El Salvador do not satisfy a state’s
duty to prosecute and are incompatible with the American Convention.[47]

Part
One: In the Heat of the Moment: Justice Issues during Peace Talks

In the short-term, it is easy to understand the temptation
to forego justice in an effort to end a war. Peace negotiations may be carried
out almost literally at gunpoint, with war-weary participants desperate to end
the conflict at any price. However, Human Rights Watch research has shown that
efforts at justice, often assumed to be antagonistic to peace negotiations, do
not necessarily have the anticipated dampening effect on discussions.

At the same time, in situations where a decision is taken to
forego justice (either explicitly with a formal amnesty or implicitly by
ignoring human rights violations), the desired objective of peace is not always
achieved. Those who go even further and attempt to placate human rights abusers
by incorporating them into the government have also found that this may not be
the panacea that will end the violence.

III. Marginalization

Requests for warrants for high-ranking leaders are often opposed
by those who believe that this will result in more violence and a prolonged
conflict. They argue that leaders facing the possibility of trial and likely
conviction have little incentive to lay down their arms. Instead, they contend,
these leaders will cling all the more tenaciously to power. The prospect of
arrest may even spur them to continue to fight a war in an effort to maintain
their position.[48] Others express
the fear that delicate peace negotiations will be upset by insistence on
accountability.

However, in practice, the anticipated negative consequences
of pressing for accountability often do not come to pass. For example, on May
27, 1999, the International Criminal Tribunal for the former Yugoslavia
announced its most significant indictment: that of Yugoslav President Slobodan
Milosevic and four other top officials for “murder, persecution, and
deportation in Kosovo” from January 1 through May 1999.[49]
The indictment was announced in the midst of the armed conflict between Serbia and NATO forces over Kosovo. The conventional wisdom at the time was that the
indictment would make the situation in Kosovo worse and would likely undercut
the prospect of any compromise by Milosevic. The Russian Foreign Ministry said
the war crimes indictment “will add to the obstacles to a Yugoslav
settlement” and “severely undermine” the authority of the
negotiators. Russia’s envoy to the Balkans, Viktor S. Chernomyrdin,
denounced the warrant as a “political show” and
“incomprehensible and unpleasant.”[50] Some in
the US government were reportedly unhappy about the timing of the indictment
and wanted to hold off as a bargaining chip in negotiations with Milosevic.[51]
Milosevic himself was contemptuous of the indictment and vowed that he would
never face trial in The Hague.

Yet less than a week later, on June 3, negotiators announced
that Milosevic had accepted the terms of an international peace plan for
Kosovo.[52] Despite
their strong opposition at the time, when asked about the indictment and its
effect on the talks, the Russian and Finnish intermediaries later admitted that
the indictment did not affect negotiations and was never on the agenda.[53]
Because Milosevic did not travel much and felt secure at home, he did not fear
ending up in The Hague.[54] But Milosevic
lost the presidential contest in the September 24, 2000, federal election. He
attempted to force a second round of the election but the opposition responded
with a series of mass rallies. On October 7, after opposition supporters
stormed the parliament, Milosevic conceded electoral defeat.[55]
Six months later he was arrested, and on June 28, 2001, the government of Serbia transferred Milosevic to The Hague.

The International Criminal Court, which has jurisdiction
over ongoing conflicts, has already created considerable controversy over
whether the prospect of prosecution stands in the way of peace. The issue is
likely to arise more and more frequently. Yet limited experience shows that the
assumptions made about its effect are not necessarily correct, and that the
potential value of justice has generally been underestimated. Rather than
scuttle peace talks or undermine a transition to democracy, an indictment may
facilitate them by altering the power dynamics.[56]
Indicting a leader for atrocities makes it harder for him to deny that the
crimes have occurred. It may also make it more difficult for the leader to
travel or obtain international or national support—his associates may
seek to distance themselves from him in an effort to avoid a similar fate. Criminal
indictment of abusive leaders and the resulting stigmatization can, therefore,
lead to marginalizing a suspected war criminal and may ultimately facilitate
peace and stability.

Human Rights Watch has documented the following examples
where indictments have helped, rather than hindered, peace processes.

A. Charles Taylor

Elected president of Liberia in 1997 after the ouster of Samuel
Doe, Charles Taylor gained international notoriety for the brutal abuse of
civilians perpetrated by his forces in Liberia and for his use of child
soldiers organized in “Small Boy Units.” Taylor’s logistical
and military support for a rebel group in neighboring Sierra Leone, the Revolutionary United Front (RUF), contributed to the death, rape, and mutilation
of thousands of Sierra Leonean civilians, and led to United Nations sanctions
and embargoes on his regime.[57] Taylor’s forces were also implicated in conflicts in Guinea and Côte d’Ivoire.

On June 4, 2003, the prosecutor of the Special Court for
Sierra Leone “unsealed” an indictment against Charles Taylor as one
of those “bearing the greatest responsibility” for war crimes
(including murder and hostage-taking); crimes against humanity (rape, murder,
extermination, sexual slavery); and other serious violations of international
humanitarian law (use of child soldiers) committed in Sierra Leone.[58]
The indictment charged that Taylor actively financed and trained the RUF before
and during Sierra Leone’s 10-year civil war. It also alleged that Taylor assisted and encouraged members of the RUF/Armed Forces Revolutionary Council rebel
alliance, who were accused of horrific crimes.[59]

The unsealing of the indictment against Taylor caused a
great deal of consternation at the United Nations Secretariat and elsewhere.[60]
The cause of concern was triggered in part by the timing of the announcement,
as it coincided with the opening day of Liberian peace talks convened in Accra, Ghana.[61]
Peace, which had mostly been elusive in Liberia since 1989,[62]
was a priority, and many felt that the indictment would undermine chances at
reaching a negotiated settlement.[63] The
African presidents who were meeting in Accra to work on the peace process felt
ambushed by the news and betrayed, as they had not been informed of the
indictment earlier.[64] Ghanaian
Foreign Minister Nana Akufo-Addo expressed his embarrassment and stated a
belief held by many that the prosecutor’s action “in unsealing the
indictment at this particular moment has not been helpful to the peace
process.”[65] Observers
thought that the indictment would undermine diplomatic efforts to achieve peace
because Taylor would be less likely to relinquish his position as president.[66]
Taylor himself initially vowed the peace process would fail unless the
indictment was lifted.[67] The
chargé d’affaires in Liberia’s Washington DC embassy called
for the prosecutor to “be arrested and put on trial.”[68]
Many in Monrovia feared that the unsealing of the indictment risked further
violence by both the rebels and the supporters of Taylor intent on revenge.

In retrospect, however, it is clear that the unsealing of Taylor’s indictment was a key factor in bringing peace to Liberia. Taylor’s
government had committed systematic abuses of civil and political rights. There
was little reason to hope that a negotiated settlement that left him in office
would have resulted in an improved situation on the ground.[69]

The International Center for Transitional Justice’s (ICTJ)
study of the 2003 peace negotiations concluded that the reason the 2003
agreement ultimately succeeded while over a dozen previous agreements had
failed was because Taylor offered to vacate the presidency and not take part in
transitional elections. That offer resulted directly from his indictment by the
Special Court for Sierra Leone.[70] The
report noted almost universal agreement among those present at the talks—even
those who had been skeptical at the time—that the unsealing of the
indictment had a largely positive effect on the talks.[71]
It de-legitimized Taylor both domestically and internationally: Liberians
expressed their concern to Human Rights Watch researchers that having a
president who could not travel would undermine Liberia’s international
standing and would make it difficult to get donor monies,[72]
and it also affected the morale of his troops (already low because they had not
been paid in months).[73] That
de-legitimization helped make it clear to Taylor that he would have to leave
office.

The results were all the more significant because initial
expectations for the peace talks had been low. The talks came about after rebel
groups made significant inroads toward taking the Liberian capital Monrovia in 2003.[74] Civil
society leaders, anxious to avoid another violent overthrow of the government,
successfully pressed for peace talks. The ICTJ report found that most
participants arrived at the talks in Ghana believing that Taylor would not
leave the presidency. However, that was the one issue over which the Liberian rebel
factions would not compromise.[75] The
unsealing of the indictment changed that dynamic. Shortly after the warrant was
unsealed Taylor said, “I will strongly consider a process of transition
that will not include me. If President Taylor removes himself for the
Liberians, will that bring peace? If so, I will remove myself.”[76]
According to a participant, the parties were eventually able to negotiate a
critical ceasefire agreement because it included a clause indicating that
Taylor would not be a part of the transitional government. It took two weeks to
negotiate that clause but it could not have been done without the public
unsealing of the indictment.[77] Taylor was not present for the negotiations because he had returned to Liberia on a Ghanaian government plane just hours after the indictment was unsealed. He ultimately stepped
down from office and left Liberia on August 11, 2003, after his military options ran out. The offer of safe haven in Nigeria was also undoubtedly a factor
contributing to his decision to leave.[78]

The ICTJ study further notes that the expected retaliatory
violence in Liberia resulting from the indictment never occurred (Taylor’s supporters had threatened to attack Ghanaians in Liberia,[79]
and more general revenge attacks were also believed imminent). Although the
atmosphere in Monrovia was tense in the hours following the news,[80]
the situation remained relatively calm. The US embassy in Monrovia responded to
threats against US citizens and the embassy by making it clear to senior government
and military officials and to rebels that they would be held responsible for
any breakdown in law and order. An influential Liberian general made a
statement on the radio urging calm.[81]

The rebels attacked Monrovia shortly after the indictment was
announced, but the attack had been planned beforehand. According to the head of
the responsible rebel group, the offensive, which resulted in hundreds of
civilian casualties, would have occurred regardless—only if Taylor had
been arrested instead of returned to Liberia would the attack have been
canceled.[82] Thus,
there is a possibility that rather than prolong the conflict, a more active
pursuit of justice, notably the immediate arrest and transfer of Taylor to the
Special Court for Sierra Leone, would have shortened the conflict by two
months.[83]

Taylor’s eventual detention in Nigeria in March 2006 and subsequent transfer to the Special Court was a relief to many who were
concerned that he might continue to play a destabilizing role in Liberia and in the region.[84] Indeed,
there were indications that while in Nigeria he continued to destabilize Liberia:
the UN secretary-general reported to the Security Council that Taylor influenced
the elections in Liberia from exile.[85] Despite
warnings from Taylor’s spiritual advisor that “there will be
tremendous destabilization in Liberia if the extradition takes place,” Taylor’s transfer to The Hague did not provoke the anticipated “violent unrest.”[86]
His trial before the Special Court for Sierra Leone in The Hague began in June
2007.

Although other important factors worked with the indictment
to bring about peace in Liberia—including the impending rebel offensive
threatening the capital, the involvement of the international community, and the
blocking by the peacekeeping force the Economic Community of West African
States Monitoring Group (ECOMOG) of arms’ delivery to Taylor—the
Taylor case shows that an indictment may strengthen peace processes and that
the feared consequences resulting from indicting a sitting head of state do not
always come to pass.

B. Radovan Karadzic

Rejecting Bosnia’s moves toward independence as
Yugoslavia broke apart, from April 1992 onwards Bosnian Serbs began seizing
control of large areas in Bosnia and Herzegovina, “ethnically
cleansing” non-Serbs and subjecting them to systematic violence and
persecution. Non-Serbs also committed violations of international humanitarian
law. The conflict, which lasted from 1992 to 1995, was characterized by grave
violations of human rights such as mass killings, rapes, widespread destruction,
and displacement of populations.[87] These
violations, due to their brutality and scale and because they were taking place
in Europe, drew the attention of the international community. Following
intensified NATO air strikes on Bosnian Serb forces in August 1995, the parties
to the conflict agreed to attend peace negotiations outside of Dayton, Ohio, in
the United States.

The negotiations opened in early November 1995, less than
four months after the worst atrocity in Europe since the Second World War: the
massacre of over 7,000 men and boys following the fall of the Bosnian Muslim
enclave of Srebrenica on July 11, 1995. Eyewitnesses interviewed by Human
Rights Watch at the time described their horror as the victims were lined up in
front of mass graves and shot.[88] Women,
children, and elderly persons deported from the area were also terrorized.

On July 24, 1995, less than two weeks after the fall of
Srebrenica and in the midst of the conflict, the International Criminal Tribunal
for the former Yugoslavia confirmed indictments against Bosnian Serb leaders
Radovan Karadzic and Ratko Mladic. The charges included genocide, crimes
against humanity, and war crimes for acts alleged to have occurred between 1992
and 1995 in several locations across Bosnia, including Sarajevo. At the time of
this indictment, Western diplomats were negotiating with Karadzic and Mladic (two
days before, a British, French, and US delegation had personally met with Mladic
in Belgrade).[89] A
second indictment against Karadzic and Mladic was confirmed on November 16, 1995, during the Dayton peace negotiations. It charged both men with
genocide, crimes against humanity, and war crimes based on the mass execution
of civilians after the fall of Srebrenica.

At the time negotiations in Dayton began, a number of
politicians and political commentators suggested that the ICTY’s work was
getting in the way of peace.[90] Indeed,
the former ICTY Chief Prosecutor Richard Goldstone said that after he indicted
Karadzic and Mladic, the UN secretary-general was furious, castigating the
prosecutor in a meeting shortly afterwards and asking why he had not been
consulted.[91]

However, the indictment of Karadzic ultimately facilitated
the Dayton Peace Accords. If Karadzic, the Bosnian Serbs’ political
leader, had not been indicted, he would have likely attended the peace
conference. Because those meetings began only two months after the massacre at
Srebrenica, Bosnian Muslim and Croat leaders would not have entered the same
room or have sat at the same table with Karadzic.[92]
A US State Department official said that the tribunal “accidentally
served a political purpose: it isolated Karadzic and left us with Slobo
[Slobodan Milosevic].”[93] In his
memoirs, the US negotiator Richard Holbrooke said that he made it very clear to
Milosevic that Mladic and Karadzic could not participate in a peace conference.
When Milosevic said that the attendance of the indicted men was necessary for
peace, Holbrooke offered to arrest them personally if they set foot in the
United States.[94]

Despite rumors of amnesties, the Dayton peace talks were not
negatively affected by the ICTY indictments against Karadzic and Mladic. As one
senior US official put it, “The war crimes tribunal isn’t going to
mess with our peace talks; we’re not going to mess with the war crimes
tribunal.”[95] A
negotiator at Dayton confirmed that the activities of the ICTY did not hinder
negotiators seeking the peace agreement, but in fact helped to cement it. He
pointed out that “the Dayton Framework Agreement, in its Bosnian
constitution, implicitly commended the work of the Tribunal by stipulating that
‘no person who is serving a sentence imposed by the ICTY and no person
who is under indictment by the Tribunal and who has failed to comply with an order
to appear may stand as a candidate or hold any appointed, elective or other
public office in the territory of Bosnia and Herzegovina.’”[96]
This provision helped speed Karadzic’s removal from his position in July
1996. Nor did the ICTY’s activities affect Milosevic’s role in
negotiating the agreement: he accepted the Dayton Peace Accords ending the
Bosnian conflict without obtaining an amnesty, even though he too was an
obvious ICTY target.[97] He (and
Karadzic, who signed the agreement) also agreed to the abovementioned clause
despite some early misgivings.[98]

Following a hearing at the ICTY in which the full trial
chamber examined the indictment and supporting evidence in public, on July 11,
1996, an international arrest warrant was issued for Karadzic and Mladic.[99]
In part because of the Dayton Peace Accords’ prohibition on suspected war
criminals serving in office, eight days later Karadzic officially stepped down
as president of the Republika Srpska. Mladic was dismissed as head of the armed
forces in November 1996.[100] The
removal of both Karadzic and Mladic resulted from their marginalization and
their pariah status following their indictment.[101]
Their having to lay low to avoid arrest ultimately contributed to resolving the
conflict and to creating a more stable situation in Bosnia.

An earlier willingness by NATO and governments in the region
to apprehend the suspects would have further helped with implementation of the
Dayton Peace Accords (see Chapter IV.C). Karadzic was not handed over by Serbia until 2008, more than a decade after the end of the war. Mladic remains at large.

C. Lord’s
Resistance Army

In Uganda as well, many commentators feared that justice and
the involvement of the International Criminal Court would prove an obstacle to
peace. Although (unlike in the other cases) leaders of the Lord’s
Resistance Army have not been apprehended and the ultimate effect of the
warrants is unknown, the warrants did not have any immediate devastating
impact. The ICC’s involvement may even have yielded unexpected short-term
positive benefits including encouraging the parties to engage in peace talks,
prompting some LRA defections, and raising the political costs to those
supporting the LRA.

Driven by regional inequality, the conflict in northern Uganda to depose President Yoweri Museveni began immediately after he took power by force
in 1986. The rebel LRA, rooted in northern Uganda, struck fear in the civilian
population by carrying out mutilations, killings, and forced recruitment of
child soldiers mostly from their own Acholi people. Ugandan soldiers of the
Ugandan People’s Defense Forces (UPDF) committed numerous human rights
violations during the war as well, including willful killing, torture, and rape
of civilians, and the government forcibly displaced the civilian population of
Acholi-land into squalid camps, arguing that the move was needed to protect the
population from the LRA and to cut off any civilian assistance to the LRA.
Human Rights Watch has documented the numerous grave abuses by both sides in
this long conflict.[102]

Efforts to end the conflict decisively failed, and in 2000,
following lobbying efforts by “elders and religious leaders from the
[worst affected] Acholi region[,]”[103] the
Ugandan Parliament passed a blanket amnesty for rebels who renounced violence
and surrendered to the government. The chairman of the Amnesty Commission,
Justice Peter Onega, described the passage of the Amnesty Act as “a
deliberate effort to try and find a peaceful way of ending the conflicts and
rebellions the country has had.”[104] Though
the population had suffered enormously at the hands of the LRA, many supported
a full amnesty out of desperation to put an end to the conflict.[105]
Although a significant number of people benefitted from the amnesty, violence against
civilians continued to worsen in the years following the Amnesty Act,
particularly after each effort by the Ugandan armed forces to wipe out the LRA.[106]

In December 2003 Museveni tried a new tack. He invited the
International Criminal Court to investigate the LRA. In July 2005 the court
issued sealed warrants for the arrest of the top five LRA leaders—Joseph
Kony (head of the LRA), Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic
Ongwen—for crimes including widespread or systematic murder, sexual
enslavement, rape, and war crimes such as intentionally attacking civilians and
abducting and enlisting children under the age of 15.[107]

The announcement of the referral to the ICC in January 2004
and the ICC’s unsealing of warrants in October 2005 were met with a great
deal of criticism. Numerous local nongovernmental organizations (NGO),
international humanitarian organizations, academics, mediators, and others
argued that ICC warrants would destroy the LRA’s will to negotiate since
they would ultimately end up on trial.[108] From
March 16 to 18, 2005, Acholi leaders met with the ICC prosecutor in The Hague in an effort to dissuade him from requesting arrest warrants.[109]
Later, Acholi leaders said that the issuing of “international arrest
warrants would practically close once and for all the path to peaceful
negotiation as a means to end this long war, crushing whatever little progress
has been made during these years.”[110] The Roman
Catholic Archbishop in northern Uganda, John Baptist Odama, saw the ICC’s
decision to issue indictments against the LRA leadership as “the last
nail in the coffin” for efforts to achieve dialogue.[111]
One-time chief mediator between the government and the rebels Betty Bigombe
responded to the news of the warrants in October 2005 by saying, “There is
now no hope of getting them to surrender. I have told the court that they have
rushed too much.”[112] Others
feared defenseless, displaced northern Ugandans would become prey to further
LRA attacks.[113]
Justice Onega said that the ICC’s decision could encourage more
atrocities as the LRA leadership could act as “desperately as a wounded
buffalo.”[114] He was
also among those who argued that the ICC’s involvement was inconsistent
with the 2000 Amnesty Act and Acholi principles of traditional justice.[115]
At the very least, many felt that the timing was “ill-conceived.”[116]
(For our part, Human Rights Watch expressed frustration that the prosecutor had
not also made public investigations into crimes by the UPDF.[117])

Two-and-a-half years after the referral, following changed circumstances
in southern Sudan and an LRA attack that killed eight UN peacekeepers in the Democratic
Republic of Congo, it has turned out that the warrants have not proved to be
the detriment that many had feared. Rather, the warrants have contributed to a
number of fairly positive events, including isolating the LRA from some of its
support base, bringing international attention to the plight of the northern
Ugandans, encouraging the most promising talks since the start of the 20-year
conflict, and ensuring that accountability formed a major part of the agenda
for those talks.

Some analysts argue that Uganda’s referral contributed
to the LRA’s isolation.[118] Since
the mid-1990s the LRA’s only state supporter has been the Sudanese
government in Khartoum, reportedly in retaliation for the Ugandan
government’s support of the rebel Sudan People’s Liberation
Movement/Army (SPLM/A).[119] Not
long after the referral was announced, Sudan agreed to a protocol allowing
Ugandan armed forces to attack LRA camps in southern Sudan.[120]
This access weakened the LRA’s military capability. Following the signing
of the Comprehensive Peace Agreement in January 2005, which ended hostilities
between the Khartoum government and the SPLA, Sudanese armed forces withdrew
from Southern Sudan, further weakening the LRA by depriving it of bases and
support that it had enjoyed for years.[121] The International
Crisis Group (ICG) notes that the ICC’s involvement raised the stakes for
Khartoum as it could fall within the ICC’s criminal investigation in Uganda for supporting the LRA.[122] In
October 2005 the government of Sudan signed a memorandum of understanding with
the court agreeing to cooperate with arrest warrants issued against LRA
commanders.[123] Though
Sudan continued to support the LRA to some degree, it did so in a much more
surreptitious manner.[124] By
severing most of its ties, Sudan significantly weakened the group, forcing it
into “survival mode” at least temporarily.[125]

The increased isolation of the LRA may have also contributed
to significant defections, including by two members of Kony’s negotiating
team.[126] Father
Carlos Rodriguez, a Spanish missionary who was based in northern Uganda for many years, stated,

Between April and September [2004] 500 or so combatants
have come out of the bush with their guns including senior officers. So the ICC
might not be so discouraging as we thought. Also those who have come out of the
bush have told us that the Sudan Government has not been giving them anything
since January this year. So the ICC may have had an influence on Sudan. The LRA will only reduce violence out of pressure and Sudan has changed its attitude
because of the ICC. They are concerned about being prosecuted. ... Now that
Sudan is not involved, it forces the LRA to talk about peace.”[127]

However, many of these defectors were given amnesty under
the Amnesty Act of 2000, which had not been used frequently up to that point.[128]
(For discussion as to why there should be no amnesty for the most serious
crimes, see Chapter II.B; for analysis of problematic amnesties in other
African conflicts, see Chapter V.)

The issuing of arrest warrants has been deemed one of a
number of factors (including the US government decision to list the LRA as a
terrorist group) that helped push the LRA and the Ugandan government to the
negotiating table in Juba, Sudan, in mid-2006. Despite rebel leaders’
claims to the contrary,[129] people
close to the peace process believe that LRA leaders decided to enter talks in
part as a result of the ICC warrants.[130] The International
Crisis Group’s investigation into the peace talks led it to conclude that
the threat of prosecution, and the issuance of warrants in particular, provided
pivotal pressure propelling the rebels to peace talks. In speaking with
commanders in the bush or their delegates at the negotiations, they found that “‘ICC’
is usually the first and last word out of their mouths.”[131]

Another benefit of the warrants that observers discerned was
that the increased attention to the conflict resulting from the ICC’s
involvement galvanized international engagement in the peace processes for what
has been described as “the biggest forgotten, neglected humanitarian
emergency in the world today.”[132]
Financial and political support from the international community for both
humanitarian needs in northern Uganda and for the peace talks has been crucial.[133]

In addition, the prospect of prosecution by the ICC helped
insert the issue of accountability into the Juba peace negotiations and resulted
in an important framework for holding all parties accountable for their
actions. In February 2008 the parties agreed to pursue domestic trials of the
ICC cases in Uganda via a special division of the Ugandan High Court created to
try war crimes committed during the conflict.[134]
This was an approach that, at least in principle, could satisfy LRA demands to
avoid trial in The Hague while meeting requirements under the ICC statute.[135]
The parties concluded negotiations on all agenda items in March 2008, but Kony
failed to appear to sign the final agreement. The conflict remains unresolved,
and although violence has subsided in northern Uganda, civilians in the DRC (where
the LRA is now based) continue to be victimized by the insurgents.[136]

IV. The Price of
Inclusion

Impunity ... can be an even more dangerous recipe for
sliding back into conflict.

In contrast to situations where alleged war criminals have
been marginalized through indictments or arrest warrants, negotiators elsewhere
have opted to include human rights abusers in a coalition government or a unified
military in the hope of neutralizing them or enhancing stability (in effect
granting them a de facto amnesty). Unlike the situations above where there are
positive effects resulting from marginalization, inclusion of alleged perpetrators
in government has not proved to be the panacea that it was thought to be. While
efforts to bring human rights abusers to justice undoubtedly present
challenges, making deals with criminal suspects in order to achieve peace can
have far-reaching negative consequences. Human Rights Watch has documented how
in post-conflict situations, leaders with records of past abuse have continued
to commit abuses and have allowed lawlessness to persist or return. Rewarding alleged
war criminals with government positions might actually encourage others to engage
in criminal activity in the hope of receiving similar treatment. Furthermore,
inclusion of criminal suspects in government erodes public confidence in the
new order by sending a message to the population about the acceptance of such
abuses and by further entrenching impunity. The following are examples of
situations where this form of impunity has carried a high price.

A. Afghanistan

From 2001 onwards various international military powers, in
particular the United States, relied upon mujahedin leaders and other warlords
and regional strongmen to defeat the Taliban regime. Rather than marginalize the
worst perpetrators from Afghanistan’s recent past, key international
actors assisted in bringing them under the umbrella of the new post-Taliban
government. Justice was viewed as a luxury that could be sacrificed in favor of
stability. Serious past human rights abuses including abduction, summary
execution, torture of detainees, rape, and looting were overlooked.[138]
The result has been continuing violence and abuse of power by some of the
warlords who now wield government power. Inclusion of those with blood on their
hands in the new order eroded the legitimacy of the Afghan government in the
eyes of Afghan people and has been used by opponents of the government to
discredit it. Ignoring abuses has also fostered a culture of impunity and increasing
lawlessness.

After the fall of the Taliban in November 2001, the United
Nations brought together leaders of Afghan ethnic groups in Germany to create a road map for representative government in Afghanistan.[139]
The resulting Bonn Agreement called for the creation of a loya jirga
(grand council), which was convened in June 2002, to choose an interim
government.[140]

The loya jirga’s selection process explicitly called
for the exclusion of delegates who had engaged in human rights abuses, war
crimes, looting of public property, or the drug trade.[141]
The loya jirga also excluded anyone with links to terrorist organizations or
who, “in the eyes of the people,” had “been involved
indirectly or directly in the killing of innocent people.”[142]
However, the Special Independent Commission for the Convening of the Loya Jirga
was unable to monitor and enforce this prohibition. Nor was it made a priority:
the warlords’ cooperation was seen by the UN facilitator Lakhdar Brahimi as
crucial to the success of the loya jirga, so there was little willingness to
confront the issue of their past records.[143] The European
Union (EU) special envoy to Afghanistan, Francesc Vendrell, described the
sentiment at the time: “In early 2002, the Americans were relying on the
warlords and commanders to pursue the War on Terror. There was a lot of
emphasis on stability and therefore justice had to wait. These unsavoury
characters were seen as providing stability.”[144]

The Afghan government, intergovernmental organizations, and
international military powers—in particular the United States—thus relied
on alleged war criminals, human rights abusers, and drug-traffickers by including
them in the government instead of prosecuting them. The result was
reinforcement of a culture of impunity that worked against peace and stability
and that fueled public disillusionment with the new Afghan government.[145]

A Human Rights Watch mission looking at the loya jirga found
that alleged war criminals in many areas were able to manipulate the process of
delegate selection.[146] In
several cases in northern and western Afghanistan, well-known regional warlords
selected themselves to participate as delegates. In other areas, through
shootings, threats, beatings, and arbitrary arrest, warlords and provincial
government leaders were able to monopolize the selection processes and to hand-pick
their own candidates.[147]

During the loya jirga several powerful military and party
leaders threatened and spied on less powerful delegates. Human Rights Watch
documented numerous cases of threats, arbitrary arrests, and killings that took
place at the time. The intimidation experienced during the loya jirga had a chilling
effect on political activity as events remained fresh in the minds of former
delegates and political party leaders.[148]

During the September 2005 national assembly and local
council elections, Human Rights Watch reported that the continuing
“warlord problem” compromised participation in the election
process.[149] The
fear inspired by commanders whose past abuses remained fresh in the minds of
ordinary Afghans had an impact on the election processes. Local commanders told
voters and community leaders for whom to vote, sometimes with direct threats.[150]
Several candidates exercised self-censorship and did not campaign outside of
urban areas for fear of harassment or attack. Many voters and candidates told
Human Rights Watch that they were frustrated by the fact that candidates with
records of past abuse could not be sidelined from the process, and there was cynicism
about claims that the democratic process would weaken and marginalize unpopular
abusers: as one Pashtun elder said, “Until the government in Kabul says
to them that they cannot take part in elections, until there is justice for all
that they did to us, we cannot trust this process.”[151]
A candidate running for office commented,

The government says it has to let these men be candidates
because they could make problems. That is not true, but that is what they say.
Well, if the central government cannot stand up to them, how can they expect
the people here—who live with these bloodthirsty commanders every
day—to vote against them? We should not have to bear the pressure. It is
the job of government.[152]

The 2005 elections had been an opportunity to deepen the
legitimacy of Afghanistan’s governmental institutions and hasten the end
of the rule of warlords and gunmen, but they did not fulfill their promise.
Instead, warlords and their proxies were elected.

In 2005-06 Human Rights Watch documented that many leaders
implicated in egregious human rights abuses in the 1990s had become Afghan
ministry officials or presidential advisors, or controlled puppet subordinates
who held official positions.[153] They
included several of the worst perpetrators from Afghanistan’s recent past,
such as Abdul Rabb al Rasul Sayyaf, Mohammed Fahim, Burhanuddin Rabbani, Gen.
Abdul Rashid Dostum, and current vice president Karim Khalili, who despite
having records of war crimes and serious abuses during Afghanistan’s
civil war in the 1990s were allowed to hold and exploit positions of power.[154]
A February 2009 Time Magazine article describes how General Dostum,
implicated in the suffocation deaths of hundreds of captives inside shipping
containers, acts as an emissary for President Karzai.[155]
On May 4, 2009, Karzai selected Mohammed Fahim, whose troops were implicated in
abuses such as rape and summary executions in 1993, to be one of his vice-presidential
running mates in the next elections.[156]

Persistent and recurring human rights violations have been
carried out by officials such as Dostum and Sayyef who would not have come to
power without the intervention and support of the international community in
2001.[157] As a
researcher with the Afghanistan Human Rights Commission put it, “Right
after the collapse of the Taliban, the government had the opportunity to go
after these commanders because they were scared and weak. Instead, the
international community and the government supported them and made them
stronger. They didn’t bring them to justice. They waited until they
committed more crimes. For this we ousted the Taliban?”[158]

In 2003 another observer noted, “A very short-term
compromise was made in 2001 after the collapse of the Taliban that we need
stability, therefore let’s bring all these warlords into the tent and
keep them on our side.”[159] Years
on, the “short-term compromise” is entrenched in Afghanistan’s political dynamics. A former NATO official in Afghanistan stated in 2009 in
regard to alleged major war criminals, “There are so many other things we
have to worry about so why go and open this can of worms?” This is an
attitude shared by many.[160]
Although bringing warlords implicated in crimes to trial presented significant
challenges in post-Taliban Afghanistan, the decision not to take on that
challenge and instead to include them in government has been costly. Abusive
actions by local strongmen and their forces have undermined the
government’s legitimacy and caused widespread fear and cynicism among
Afghans.[161]
As Afghan human rights activist Nader Nadery said, “The militia leaders
became part of the structure and began using their powers again. They made
institutions unprofessional, unqualified and corrupt. There’s a culture
of impunity. Everyone thinks they’re immune from prosecution, so they do
whatever they want.”[162]

By 2006 the Taliban and other insurgent groups in Afghanistan had gained increased public support due to the government’s failure to
provide essential security and development. A December 2008 International
Crisis Group report on policing in Afghanistan concluded that the lack of rule
of law lies at the heart of much popular disillusionment and that the weakness
of law enforcement has contributed to the appeal of insurgents in Afghanistan.[163]
The ongoing lawlessness helps the Taliban portray its rule in the 1990s as one
of relative law and order.[164] The
Taliban is able to use the presence of warlords in the government and the poor
perceptions of police to discredit President Karzai’s administration and
its domestic backers. Taliban leader Mullah Omar said in a communiqué,
“If the police of a state consist of people who are immoral and
irreligious ... how can they protect the property, dignity and honor of the
people?”[165] The
same argument could be made with respect to the militia leaders holding power
in government. Thus, the accommodation of warlords and failure to secure
justice for their misdeeds have ultimately served to tarnish public perception
of the Afghan government and, in turn, may contribute to ongoing instability.[166]
As Francesc Vendrell stated,

In Muslim society, justice is the most essential element,
and here in Afghanistan, people simply don’t see it exist. They see
impunity, they see a few people become extremely wealthy and they see cruelty.
Therefore I think many of them are fence sitters. And you can’t hope to
win an insurgency when the civilians are sitting on the fence.[167]

An extensive survey by the Afghan Human Rights Commission
conducted in 2004 found that the vast majority of Afghans considered justice
for crimes very important and felt that bringing suspected war criminals to
justice—and soon—would improve stability.[168]
Little progress has been made, however, notwithstanding the Afghan
citizenry’s emphatic support for justice initiatives. A positive
development occurred in December 2006 when the Afghan government approved an
Action Plan on Peace, Reconciliation and Justice that included establishment of
a justice and accountability mechanism. However, following the announcement of
the action plan, a coalition of former warlords, ex-Taliban officials, and
former communist leaders pushed a highly controversial resolution through both
houses of the parliament. The bill provided full amnesty for all war criminals
and banned public criticism of government authorities and militia leaders who
ruled Afghanistan after the demise of the communist government. In March 2007
the Afghan parliament passed a revised resolution granting itself a general
amnesty, yet recognized the rights of victims and their families to bring civil
or criminal claims. The president did not sign the resolution into law so it is
unlikely ever to become operative.[169] Nonetheless,
the effort to secure amnesties demonstrates another peril of including alleged
war criminals in the government: the entrenchment of impunity.

Gulbuddin Hekmatyar

The 2001 Bonn Agreement was not the first time accommodation
with alleged war criminals was used in an effort to procure peace in Afghanistan. Repeated efforts in the 1990s to accommodate Gulbuddin Hekmatyar show how, on
an individual level, the decision to forego justice in favor of inclusion can
be costly.

Hekmatyar is one of Afghanistan’s most notorious and
destructive warlords. He is the head of the Hezb-e Islami, a predominantly
Pashtun faction that was one of the primary recipients of military assistance
from the United States and Pakistan throughout the 1980s and early 1990s.
Hezb-e Islami began as a resistance movement based in Pakistan fighting the Soviet occupation of Afghanistan. In the 1980s Hezb-e Islami was associated
with abuses including indiscriminate attacks on civilians and summary
executions of prisoners from a rival mujahedin group.[170]
The United States and others chose to disregard evidence of abuses by
Hekmatyar, despite the fact that his group was backed by millions of dollars of
US military aid.

In 1992, the year following the collapse of the
Soviet-backed government in Afghanistan, Kabul was the scene of almost constant
armed conflict among belligerent Afghan military forces. Various factions,
including Hekmatyar’s, battled over the city and committed atrocities
against the civilian population. Human Rights Watch gathered accounts showing
that Hezb-e Islami forces used artillery and rockets in apparently intentional
attacks on populated civilian areas, failing to properly aim (with respect to
artillery guns), recklessly using weapons that could not be aimed in a dense
civilian setting (with respect to rockets), and unlawfully treating the city as
one unified military target.[171] In the
summer of 1992 alone, shelling and rocket attacks by Hekmatyar’s forces
killed at least 2,000 people, mainly civilians.[172]
In addition, Hezb-e Islami troops were involved in murder, rape, and looting in
Kabul during 1992-93.[173]

As the head of Hezb-e Islami, Hekmatyar had command
responsibility for the forces under his control that were implicated in crimes.
He was unambiguously the sole military and political leader of Hezb-e Islami forces
and was in command during its attack on Kabul.[174]
Nonetheless, Hekmatyar was named prime minister as part of the March 1993
Islamabad Accord. He served as prime minister from March 1993 until early 1994,
when he again attempted to overthrow the government. His forces launched
indiscriminate rocket attacks on Kabul intermittently until February 1995.[175]
After his rocket attacks had almost completely destroyed Kabul, the Afghanistan government tried to settle peacefully with Hekmatyar again and for a third time
offered him a position as prime minister for the purpose of joining forces
against the Taliban. He accepted and served as prime minister from June 26 to September
27, 1996, when the Taliban took over Kabul and forced him to flee.

Hekmatyar and the Taliban were initially bitter rivals.
However, on December 25, 2002, Hekmatyar and the Taliban publicly announced
that they were coordinating their activities against the Afghan government and
its international supporters. Media reports from 2006 indicate that
Hekmatyar’s son, Jamaluddin, has represented Hezb-e Islami at meetings
with the Taliban.[176]

Since then, Hekmatyar’s group has been implicated in
many other attacks. For example, Human Rights Watch documented 204 attacks
against schools between January 1, 2005, and June 21, 2006, and named Hekmatyar
as one of those responsible.[177] During
the attacks teachers were beheaded, schools were blown up, and students were
warned against attending school. The attacks had a serious impact on education,
particularly for girls.[178] In
addition, since early 2006 the Taliban and Hezb-e Islami have carried out an
increasing number of armed attacks that have either targeted civilians or
disregarded the impact on civilian life. Human Rights Watch counted at least
699 civilian casualties from insurgent attacks in 2006, including 189 bomb
attacks.[179] Insurgent
attacks killed at least 950 civilians in 2007 and intensified in 2008, killing
1,160 civilians.[180]

On February 19, 2003, the US government designated Hekmatyar
as a “Specially Designated Global Terrorist” because of his
participation in and support for Taliban and al-Qaeda terrorist activity.[181]
If Hekmatyar had been called to account for crimes committed in the early
1990s, instead of handed government appointments, then some of this suffering
may have been averted. Instead, he may soon be back at the negotiation table.[182]

B. Democratic Republic of Congo

A pervasive culture of impunity has been one of the greatest
obstacles to sustainable peace in the Democratic Republic of Congo. In an
effort to buy compliance with the transition process, the government gave posts
of national or local responsibility, including in the army and police, to dozens
of people suspected of committing international human rights violations.[183]
A Congolese lawyer, dismayed by such promotions, remarked, “In Congo we
reward those who kill, we don’t punish them.”[184]

One result of this policy is to create incentives for armed
groups to engage in violence in the hope of being rewarded with government or
army positions in exchange for laying down their arms. In addition, the
decision not to hold perpetrators to account for their crimes has in some cases
left them free to continue to wreak havoc in the region. The consistent failure
to hold perpetrators to account has created an environment in which former
rebels who have been incorporated into the armed forces continue to murder,
torture, and rape civilians.[185] A
number of other key factors have contributed to the brutal violence in eastern Congo, including competition for control over natural resources, land rights, and ethnic
cohabitations, but incorporating warlords into the armed forces in an effort to
obtain peace has only worsened the situation.

Congo has been wracked by two wars over the past dozen years.
The first, from 1996 to 1997, ousted long-time ruler Mobutu Sese Seko and
brought to power Laurent Desire Kabila, the leader of a rebel alliance
supported by the Rwandan and Ugandan armies. A year later, Laurent Kabila
turned on his former backers Rwanda and Uganda who in turn launched
the second Congo war, which lasted from 1998 to 2003. Sometimes referred to as “Africa’s first World War,” the second war drew in six other
African countries, spawned a host of rebel groups and local militias, and
ultimately resulted in the deaths of an estimated 5.4 million people.[186]
In 2002, international pressure led to peace discussions between the national
government and the major rebel groups in Sun City, South Africa, which paved
the way for the establishment of a transitional government in June 2003.

1. Incorporating abusers in the transitional
government

As agreed during the 2002 Sun City peace
talks, the transitional government passed an amnesty law that granted amnesty
for engaging in acts of war, but specifically excluded amnesty for war crimes,
crimes against humanity, and genocide.[187]
Despite setting a marker that such crimes were punishable, individuals with a
known record of human rights abuses were integrated into the government and the
army, with officials making no serious effort to investigate or prosecute them.

One such individual was Gabriel Amisi, promoted to the rank
of general. Amisi, also known as “Tango Fort,” had been a senior
commander in the Rwandan-backed Congolese Rally for Democracy-Goma (Rassemblement
Congolais pour la Democratie-Goma, RCD-Goma), one of the main rebel groups
fighting in the DRC from 1998 to 2003. According to research by Human Rights
Watch, in May 2002 Amisi and another RCD-Goma commander, Laurent Nkunda (see
below), were responsible for the brutal suppression of a mutiny in Kisangani where at least 80 people were summarily executed.[188]
This included over two dozen people who were beaten, bound, and gagged before
being executed and their weighted bodies thrown off a bridge into the water below.[189]

The UN high commissioner for human rights and the under-secretary-general
for peacekeeping operations briefed the Security Council on the Kisangani killings following their own investigations. The high commissioner called on the
Congolese authorities to arrest those who were involved in the massacre and
warned of further bloodshed if those responsible for the May massacre were not
brought to justice.[190] In
response, the Security Council issued a presidential statement demanding that
RCD-Goma “take the necessary measures to bring the perpetrators and those
among them who ordered or were involved in the massacres to justice.”[191]
Despite the international condemnation of the crimes, neither Amisi, Nkunda,
nor other officers believed to be responsible were investigated or charged.
Less than a year later, Amisi and Nkunda were promoted to generals in the new
Congolese army. At this writing, Amisi is the chief of staff of the Congolese
army. Other individuals with a known track record of human rights abuses were
also granted important posts. Few diplomats condemned the promotions.[192]

The promotions, the lack of justice, and the failure to
launch a credible truth and reconciliation commission (also established by the Sun City accords), sent a clear signal early on that the new government was unwilling or
unable to end the culture of impunity.

The signal was a dangerous one as peace remained elusive.
Violence continued in the Ituri district of Oriental province, in North and
South Kivu provinces, and in parts of Katanga province where splinter factions
emerged or new armed groups were created. Continued violence, with devastating
results for civilians, was perceived by armed groups as the best way to
strengthen their negotiating position or secure a seat at the table. As one
commander told Human Rights Watch in 2003, “Our government only listens
to guns and violence and we need to make them hear us.”[193]

2. New armed groups want official appointments

The negative consequences of rewarding warlords responsible
for serious human rights abuses was most evident in Ituri, often described as
the bloodiest corner of Congo, where tens of thousands were brutally
slaughtered on an ethnic basis between 1999 and 2009.[194]
The transitional government lacked effective control of the area and six armed
groups (backed at different times by Uganda, Rwanda, and the Congolese
government) vied for control of the region.[195]

In August 2003 President Joseph Kabila (the son and
successor of Laurent Kabila, who was assassinated in 2001) called the leaders
of the armed groups to Kinshasa to discuss establishing order in Ituri. All
parties signed a memorandum of understanding to end hostilities, and then the
government instructed them not to return to Ituri, placing them under a form of
loosely policed “house arrest” at a Kinshasa hotel, where they were
placated with promises of possible positions in the government or the army.[196]

On December 11, 2004, despite mounting evidence of their
abuses, Kabila signed a decree granting five leaders of the Ituri armed groups
positions as generals in the newly integrated Congolese army and a further 32
militiamen positions as lieutenant-colonels, colonels, and majors. The generals
were welcomed into army ranks in January 2005.

One of those appointed to the rank of general was Jerome
Kakwavu, the commander of the People’s Armed Forces of the Congo (Forces
Armées du Peuple Congolais, FAPC) responsible for summary executions
(including child soldiers who attempted to flee the ranks), the torture of
dozens of civilians, and rape of women and girls in Ituri.[197]
In late 2004 and early 2005 evidence of Kakwavu’s crimes was uncovered by
the United Nations Mission in Congo (Mission de l'Organisation des Nations
Unies en République démocratique du Congo, MONUC) when it took
physical control of a former FAPC military base at Ndrele. A judicial
investigation, with the assistance of MONUC, alleged that Kakwavu had committed
war crimes, but no arrest warrant was issued. At this writing Kakwavu remains a
general in the Congolese Army.[198]

In the same round of appointments, Floribert Kisembo
Bahemuka was appointed a general. Kisembo had been the military chief of staff
of the Union of Congolese Patriots (Union des Patriotes Congolais, UPC) and was
one of the commanders responsible in late 2002 for a campaign of executions and
forced disappearances of civilians who opposed UPC policies in Bunia. UPC
troops under Kisembo’s command also participated in ethnic slaughter of
civilians at more than a dozen places across Ituri.[199]
Despite warrants from the ICC for the arrest of two of his colleagues in the
UPC, one of whom was a subordinate, Kisembo has to date not been charged and
instead is the deputy commander of the military region of Maniema province, in
eastern Congo.

The Congolese authorities contended that integrating these
and other commanders with abusive records was a way of removing them from
Ituri, thus making it easier to end the fighting there.[200]
But by doing so the government reinforced the message that brutalities would
not only go unpunished, but might be rewarded with a government post. The
message was clear: violence brings rewards.[201]

Within six months of the appointments, new armed groups were
formed in Ituri all claiming, as others had done before, that they represented
marginalized communities and demanding high ranks in the army. The failure to
adequately disarm combatants and to provide peace dividends for local
communities contributed to the emergence of the new armed groups, but so did
the perception that violence was an effective route to power. These groups
continued the terror tactics that previous armed groups had used so
successfully: killing civilians, raping women and girls, and arbitrarily
arresting and torturing those who opposed them. In May 2006, one of these groups,
the Front for National Integration (Front Nationalist
et Integrationist, FNI), killed a UN peacekeeper and
took seven others hostage. As part of negotiations to free the peacekeepers,
FNI’s leader, Peter Karim, demanded a position as a general in the Congolese
army. According to a UN official involved in the negotiations, Karim was given
verbal assurances that a high ranking position would be offered to him.[202]
It set the direction for a further round of promoting warlords to positions of
power.

In August 2006, Congolese government officials, supported by
the UN, once again held peace discussions with the Ituri armed groups. Two
months later, in November 2006, the groups signed a new peace agreement.[203]
Their leaders—including Peter Karim—were all granted the rank of
colonel in the Congolese army. Dozens of others were appointed as
lieutenant-colonels and majors. One of the newly appointed officers later
remarked to Human Rights Watch, “Maybe if we had killed more people, I
would have become a general.”[204]

A similar pattern emerged in Katanga province. Between 2003
and 2006 a local defense force known as the Mai Mai, which had been allied to
the Congolese government during the second Congo war, turned against its former
backer when salaries and logistical support were no longer forthcoming and few
of their commanders received important positions in the transitional
government. Commanded by Gedeon Kyungu Mutanga, the Mai Mai killed, raped, and
abused civilians. In some cases they publicly tortured victims before killing
and cannibalizing them in ceremonies intended to terrorize the local
population. When the government launched military operations against the group,
the violations by both sides intensified. The suffering and brutalities were so
widespread that local residents called the region “the triangle of
death.”[205]

As with rebel groups in Ituri, Mai Mai used violence as a
means to impose their control over the area and to gain leverage in
negotiations. Mai Mai combatants deliberately killed more than 40 local chiefs
and state representatives in various localities and threatened others. When the
government organized peace talks with some of the Mai Mai leadership, they
presented a list of demands including military and other positions for their
commanders. Some Mai Mai leaders surrendered, were named colonels and majors in
the national army, and have never faced justice.[206]

In May 2006 Gedeon surrendered to UN peacekeeping forces
believing that he was being taken to a meeting with President Kabila. Following
intense pressure from the UN and civil society organizations, the government
broke from previous practice and detained Gedeon rather than promoting him. A
year later he and 20 other co-accused were brought to trial in what became the
largest trial involving crimes against humanity in Congo’s history. He
was found guilty on March 5, 2009.[207]

At times, Congolese judicial officials with the help of UN
human rights specialists did try to stem the wave of impunity, as evidenced by
the trial against Gedeon, but too often their efforts were undermined by
political interference, corruption, or prison breaks where some militia leaders
who had been arrested managed to escape.[208] The
ongoing impunity left alleged war criminals free to continue to commit crimes.
Two stark examples of the vicious circle are Laurent Nkunda and Bosco Ntaganda.

In the years following the 2003 peace agreement that
established Congo’s transitional government, new armed groups also
emerged in North and South Kivu provinces claiming their grievances had not
been addressed, with some seeking positions in government or the army or a
redistribution of power to the local level. By January 2008 there were 22 such
armed groups.

One of the most important leaders in the new batch of armed
groups that emerged in North Kivu was Laurent Nkunda. In June 2003 the
transitional government named Nkunda as a general in the new Congolese army
despite his track record of abuses in Kisangani as described above.[209]
Unlike his former colleague Gabriel Amisi, Nkunda, a Congolese Tutsi, refused
to take up his post citing concerns for his own safety.[210]
The next year, following a dispute between military commanders in South Kivu, he joined another former RCD-Goma commander, Jules Mutebutsi, and marched on
Bukavu with some 1,000 troops. Nkunda claimed he “wanted to protect his
people”[211] (while
there had been targeted killings of some 15 individuals, mostly Tutsi,[212]
his claim that the military operation he mounted was motivated solely by this
concern seems unlikely). Human Rights Watch researchers documented that forces
under Nkunda’s command killed civilians and carried out widespread sexual
violence during their operations.[213]

UN peacekeepers were unable to stop Nkunda’s offensive
on Bukavu and the resulting crisis nearly derailed an already weak transitional
government. In October 2004 the Security Council directed UN forces to
cooperate with Congolese authorities “to ensure that those responsible
for serious violations of human rights and international humanitarian law are
brought to justice.”[214] A year
later, in September 2005, the Congolese authorities issued a warrant for the
arrest of Nkunda.[215] Again,
on December 21, 2005, the Security Council reiterated its call “stressing
the urgent need for those responsible for [violations of human rights and
international humanitarian law] to be brought to justice.”[216]
But no action was taken, and diplomats did not follow up the Council’s
requests with any concerted effort.

Throughout 2005 and into 2006, the international
community’s attention was focused on presidential and parliamentary
elections in Congo, the first democratic elections in over 40 years. Caught up
in the political and logistical challenges of the election process, many
Congolese leaders, as well as representatives of the donor community and MONUC,
accepted that little progress would be made on such major issues as army reform
or establishing a functioning judicial system. Diplomatic representatives stated
that it would be unproductive to push too hard on such issues, including
seeking to arrest those responsible for serious crimes, preferring not to
“rock the boat.”[217] On
Nkunda, MONUC decided to pursue a strategy of containment: take no action to
arrest or confront him, but use deterrent action to contain his activities and
zone of influence to minimize possible disruptions to the elections.[218]
The strategy was ill-advised and short-sighted.

Nkunda used the time to found the National Congress for the
Defense of the People (Congrès National pour la Défense du Peuple,
CNDP) with a program of preventing the exclusion of Tutsi from national
political life and assuring their security.[219] Like
rebels in other parts of Congo, Nkunda believed that launching an armed group
would ensure his voice was heard. In August 2006 he told Human
Rights Watch researchers, “We need to make sure our cries are heard. We
must be listened to.”[220]

Throughout 2006-07 Nkunda’s CNDP
enlarged the area that it controlled, effectively creating a state within a
state. Human rights abuses by the CNDP and other armed groups increased,
especially when the Congolese government launched failed military operations to
attempt to defeat Nkunda. Horrific attacks on civilians—including
murders, widespread rape, and the forced recruitment and use of child
soldiers—by all sides to the conflict followed. Hundreds of thousands of
people were forced to flee their homes.[221]

The Congolese government, unable to defeat Nkunda
militarily, decided to enter into peace discussions with him. On January 23,
2008, after weeks of talks, the government signed a peace agreement in Goma, North Kivu, with 22 armed groups of which the CNDP was the most influential. While the
agreement committed all parties to an immediate ceasefire, disengagement of
forces from frontline positions, and respect for international human rights
law, it did not hold. Conflict resumed and Nkunda stated that Joseph Kabila,
elected as president only two years earlier, should resign.[222]
Faced with the possibility of losing eastern Congo and with no support coming
from other African allies or the European Union, Kabila struck a secret deal
with his former enemy, the Rwandan government. Congo would allow Rwandan troops
to return briefly to eastern Congo to pursue their enemy—the Rwandan Hutu
militia the Democratic Forces for the Liberation of Rwanda (Forces
Démocratiques de Libération du Rwanda, FDLR)—in exchange
for arresting Nkunda. On January 22, 2009, Nkunda was called to a meeting in Gisenyi, Rwanda, and detained by Rwandan officials.[223]

Instrumental in Nkunda’s downfall was Bosco Ntaganda,
formerly a senior military commander from the UPC armed group who had fallen
out with the UPC and had joined Nkunda sometime in 2006. Ntaganda, also a
Congolese Tutsi, became Nkunda’s new military chief of staff. He had
already been implicated in brutal human rights abuses, but was one of the five
Ituri leaders who in December 2004 had been granted positions as generals in
the newly integrated Congolese army (see above). (He had not taken up this
post: fearing for his security in the capital, Kinshasa, Ntaganda had refused
to attend the swearing-in ceremony.) In January 2009, in an effort to divide
Nkunda’s CNDP, Ntaganda with support from Rwanda led a putsch to oust Nkunda
from leadership and to install himself as the group’s military commander.
In exchange, the Congolese government rewarded him for a second time with the
post of general in the Congolese army.

Ntaganda’s track record is one of widespread human
rights abuses. In November 2002, Ntaganda, then in charge of military
operations for the UPC in Ituri, led troops in attacks on the gold mining town
of Mongbwalu, where at least 800 civilians were brutally slaughtered on an
ethnic basis. Such attacks were repeated in dozens of other locations.[224]
According to UN peacekeepers, troops commanded by Ntaganda were responsible for
killing a Kenyan UN peacekeeper in January 2004 and for kidnapping a Moroccan
peacekeeper later that year.[225] He was
placed on the UN sanctions list in November 2005 for breaching a UN arms
embargo.[226] While
acting as military chief of staff in Nkunda’s CNDP, troops under Ntaganda’s
command were responsible for the November 4-5, 2008 massacre of 150 civilians
in Kiwanja in North Kivu.[227]

Nkunda’s removal appeared to open up new possibilities
to finding peace in eastern Congo, but political expediency rather than the
interests of justice have determined both his and Ntaganda’s recent,
contrasting fates. Laurent Nkunda has been implicated in numerous serious
crimes since May 2002, but despite repeated calls by the UN and others for
those responsible for the crimes in Kisangani to be brought to justice, Nkunda
was not investigated or prosecuted. The government sought to accommodate him, but
the accommodation did not work: rather than preventing further crimes, the
opposite occurred. Nkunda’s forces went on to commit additional crimes
and to contribute to a major political, military, and humanitarian crisis. The
political and diplomatic costs of arresting Nkunda in 2002 when he was first
implicated in perpetrating war crimes would have been substantially less.

As for Bosco Ntaganda, in August 2006, the International
Criminal Court issued an arrest warrant against him for the war crime of
enlisting and conscripting children under the age of 15 and using them in
hostilities between 2002 and 2003 in Ituri.[228] The
Congolese government, which requested the ICC to investigate crimes in Congo,
and which to date has been cooperative with the court, in this case failed
dramatically in its legal obligation to arrest Ntaganda. In a televised press
conference on January 31, 2009, President Kabila invoked the peace versus
justice dilemma, stating that he faced a difficult choice between justice and
peace, stability, and security in eastern Congo. He said his choice was to
prioritize peace. Congolese authorities attempted to legitimize Ntaganda as a
“partner for peace,” reinforcing the perception that those who
commit heinous crimes against civilians in Congo will be rewarded rather that punished.
Dozens of local human rights nongovernmental organizations condemned the
decision. Ntaganda is now reportedly serving as a high-ranking advisor to UN
peacekeeping forces on their operations in Congo, despite his status as a
wanted man at the ICC.[229]

C. Bosnia and Herzegovina

In a new administration, alleged war criminals
in the ranks of even lower-level officials can impede stability and obstruct
the implementation of peace agreements. This was demonstrated in Bosnian towns immediately
following the Balkan wars in the 1990s. For example, the Bosnian administrative
district of Prijedor, located west of the city of Banja Luka in what is now
Republika Srpska, was before 1992 a multi-ethnic area with a non-Serb
population of well over 50,000. After Bosnian Serb forces took control of the
region in April 1992, the communities and homes of non-Serbs were destroyed,
families were separated, and thousands of people were held in concentration
camps, where many were tortured and executed. Tens of thousands were forcibly
deported under inhumane conditions. After the war, only about 600 Bosniaks
(Bosnian Muslims) and 2,700 Bosnian Croats remained in Prijedor. The Catholic
church and all mosques in Prijedor were destroyed in 1992.[230]

Notably the same Serb individuals who took
control of Prijedor through systematic policies of “ethnic cleansing”—including deliberate killings, concentration camps, mass rape, and the
takeover of businesses, government offices, and all communal property—retained total control over key security, economic, infrastructure, and
humanitarian sectors of the community after the war.[231] The architects of the
“ethnic cleansing,” many of whom were under investigation by the
International Criminal Tribunal for the former Yugoslavia, were interacting
daily with representatives of international organizations and receiving a
wholly undeserved legitimacy.

Despite the requirements of the 1995 Dayton agreement, these same local authorities refused to protect non-Serbs or to
investigate crimes against them. Civilian and police authorities worked in
tandem to prevent the return of non-Serb refugees and displaced persons by
organizing or inciting violence against those who attempted to return and by
orchestrating (with the assistance of the Bosnian Serb Army, according to NATO)
the destruction of houses. For example, local authorities used radio broadcasts
to encourage the residents of Prijedor to believe that returning refugees posed
a threat and that they must meet the returnees with violence in order to
“defend” themselves. The fear this generated brought crossings into
Bosnian Serb territory to a standstill. Restrictions on freedom of movement,
destruction of other property, and ethnically-based eviction through the
application of discriminatory laws were also carried out. The Bosnian Serb
authorities continued to implement their goal of an ethnically pure entity, the
same goal that led to massive “ethnic cleansing” campaigns during
the war. Despite serious non-compliance with the Dayton agreement and failure
to cooperate with organizations charged with implementing Dayton, international
actors failed to confront the problem and continued to provide large sums of
reconstruction money to people who had engaged in or advocated for
“ethnic cleansing” during the war and then actively obstructed the
Dayton agreement.[232]

In the Doboj-Teslic area as well, Human Rights
Watch found evidence that the national and local political leadership of the
Republika Srpska as well as the state organs and agencies under its
control—including the Ministry of Internal Affairs and the local police
force—were responsible for directing, aiding, and abetting ongoing widespread
human rights abuses against non-Serb minorities, and for blocking
implementation of Dayton. In particular, Human Rights Watch documented that
Republika Srpska forces and agencies, along with underground Bosnian Serb
paramilitary organizations, committed acts of deliberate killings,
“ethnic cleansing,” expulsions, obstruction of freedom of movement,
obstruction of the right to remain, continued practice of forced labor, beating
and torture in detention, threats and intimidation, looting and destruction of
property. These acts revealed the continuing control exerted by wartime
organizers of “ethnic cleansing” despite the fact that the
whereabouts and identity of the persons involved were well known to the
international representatives in the region.[233]

The international community’s failure following
Dayton to detain indicted war crime suspects or to control ongoing abuses by
unindicted alleged war criminals left in place many of the very people most
responsible for genocide and “ethnic cleansing” in the former Yugoslavia. Key governments remained silent about many of the abuses and the identity of the
abusers in the post-Dayton period. In addition, these war crimes suspects acted
to block implementation of the Dayton agreement and thereby slowed the
establishment of a functioning state that respects human rights. Beginning in
1998, and particularly between 1999 and 2004, the Office of the High
Representative in Bosnia did remove from office a number of obstructionist
politicians.[234] A number of war crimes suspects were eventually arrested and
transferred to The Hague. Nonetheless, ongoing concerns about continuing ethnic
divisions in Bosnia can be traced back, in part, to the early failure to purge
the Republika Srpska of leaders implicated in war crimes.[235]

V. Explicit and
Implicit Amnesties in Peace Agreements

Foregoing accountability does not necessarily result in the
hoped-for benefits. Instead of putting a conflict to rest, inserting in a peace
agreement an explicit amnesty—which may grant immunity from prosecution for
war crimes, crimes against humanity, or genocide—sanctions the commission
of crimes of most concern to the international community without resulting in
the desired objective of peace. Even without an explicit amnesty provision in a
peace agreement, turning a blind eye to international crimes (a de facto
amnesty) can be an important contributing factor to ongoing human rights
abuses. All too often a peace that is conditioned on providing immunity for
these most serious crimes is not sustainable. Worse, it sets a precedent of immunity
for atrocities that encourages even more abuses.

In the situations described below, Human Rights Watch has
documented ongoing violence after implementation of peace agreements that explicitly
or implicitly provided immunity from prosecution for serious crimes. Doubtless
other factors fueled these conflicts, and it is beyond the scope of this paper
to touch on all the causes of the violence. However, on the basis of our
research in the following situations, we believe that de jure or de facto amnesties
were important contributing factors to the ongoing commission of crimes after
peace agreements were signed.

A. Sierra Leone

The attack on Sierra Leone by Revolutionary United Front rebels
crossing from Liberia on March 23, 1991, triggered an 11-year civil war in
Sierra Leone. The conflict was characterized by extreme brutality and
widespread atrocities against the civilian population. In particular, the RUF notoriously
cut off the hands, arms, lips, legs, or other body parts of some civilians in
their custody. RUF rebels systematically committed rape and other forms of sexual
violence against girls and women, and abducted thousands of women and children
to take part in their forces.

Despite the horrific nature of their crimes, a peace
agreement signed in Abidjan in November 1996 granted the RUF an amnesty in
order to “consolidate the peace and promote the cause of national
reconciliation.”[236]

In a stark demonstration of de jure immunity failing
to “consolidate peace,” the ceasefire provided for in the Abidjan accords
was broken less than two months later when serious fighting broke out in
southern Moyamba district. On May 25, 1997, the elected president, Ahmad Tejan
Kabbah, was overthrown in a coup by the Armed Forces Revolutionary Council
(AFRC) which consisted primarily of disgruntled former Sierra Leonean army
soldiers.[237]

From exile in Guinea, President Kabbah mobilized
international condemnation of the coup. In response to his request, hundreds of
Nigerian troops based in Liberia as part of the Economic Community of West
African States Monitoring Group were transferred to Freetown to reinforce
troops already stationed in the capital to protect the airport.[238]
After months of international military and diplomatic pressure (including
strict sanctions imposed by the United Nations and the Economic Community of
West African States, ECOWAS), the Kabbah government-in-exile and the RUF/AFRC
signed an agreement in Conakry on October 23, 1997. The agreement also included
an amnesty provision for those involved in the military coup.[239]

Once again, the hoped-for effect of the amnesty—lasting
peace—did not occur. The RUF/AFRC undermined the agreement by stockpiling
weapons and attacking ECOMOG forces. In February 1998 ECOMOG forces, together
with the pro-government Kamajor militia, launched an operation that drove the
RUF/AFRC forces from Freetown. After losing power, members of the RUF and AFRC
engaged in a campaign to terrorize civilians in Sierra Leone. Between February
and June 1998 their forces raped, mutilated, or killed thousands of civilians.
They abducted men, women, and children for use as combatants, forced laborers,
and sexual slaves.[240]

In July 1998 Nigeria transferred RUF leader Foday Sankoh
(who had been arrested in 1997 at Lagos airport in Nigeria on arms charges) to
Sierra Leone where the Supreme Court tried and sentenced him to death for
treason for his role in the 1997 coup.[241] By the
end of 1998, after a series of offenses enabled them to gain control of the
diamond producing area of Kono and other strategic areas, the RUF/AFRC had
gained the upper hand militarily and from that position of strength launched a
major offensive on Freetown in January 1999.[242]

The battle for Freetown and the ensuing three-week
occupation of the capital were again characterized by the systematic and
widespread perpetration of abuses against the civilian population. At least 4,000
civilians were killed.[243] As the
RUF forces were driven out of Freetown in February 1999, they abducted
thousands of civilians. As they moved eastward from Freetown into the bush, the
rebels continued to commit egregious human rights abuses, including killings
and amputations.[244] Human
Rights Watch extensively documented rebel atrocities committed during the
January rebel offensive and in the following months.[245]

Government and ECOMOG forces also committed serious human
rights abuses, though on a lesser scale, including over 180 summary executions
of rebels and their suspected collaborators.[246]

After intense international pressure in the months following
the January invasion, Kabbah’s government and the RUF rebels signed a
ceasefire agreement on May 18, 1999, followed by a peace agreement in Lomé, Togo, on July 7, 1999. The accord, brokered by the UN, the Organization of
African Unity, and ECOWAS, committed the RUF/AFRC to lay down its arms in
exchange for representation in a new government. Rather than being held to
account for abuses, RUF leader Foday Sankoh (who had been released from jail
provisionally to attend the peace talks) was rewarded with the chairmanship of
the board of the Commission for the Management of Strategic Resources, National
Reconstruction and Development (which gave him access to the country’s
extremely lucractive diamond mines) and the status of vice-president. AFRC
leader Johnny Paul Koroma was made the chairman of the Commission for the
Consolidation of Peace provided for under article 6 of the peace agreement.

Although amnesty had previously failed to bring “lasting
peace” to Sierra Leone, negotiators did not change their stance towards
accountability.[247] The
agreement again included a general amnesty for all crimes committed by all
parties in the war up to the signing of the peace agreement.[248]
Despite the fact that Sankoh’s RUF was responsible for some of the most
brutal violence seen in a civil war in Africa, he was granted a pardon and his
forces were granted an amnesty for the third time. Indeed, in these
negotiations the issue of amnesty was considered “a foregone conclusion.”[249]
The lack of discussion about amnesty provisions was due in part to the use of
earlier agreements as a reference point.[250]

As mentioned in Chapter II.B, at the last minute, the UN
secretary-general’s special representative attending the talks added a
handwritten caveat that the UN held the understanding that the amnesty and
pardon provision did not apply to international crimes of genocide, crimes
against humanity, war crimes, and other serious violations of international
humanitarian law.[251] This,
however, did little to counteract the impression that the RUF would not be
prosecuted for its many crimes against humanity. The very belated mention of justice
also caused some to question the commitment to accountability and justice held
by those involved in the negotiation process, most notably the United Nations.

Within two months of signing the accord, Human Rights Watch
documented numerous new rebel abuses including rape, torture, attempted
amputation, shooting, abduction, vehicle ambush, and extensive looting of
property in the central and western parts of the country.[252]
The rebels largely refused to comply with the disarmament provisions, and in
May 2000 hostilities resumed when the RUF took several hundred UN peacekeeping troops
hostage.

Over the course of 2000, in addition to abuses by the RUF,
Human Rights Watch observed an increased number of serious abuses by the civil
defense forces, a pro-government militia. Their crimes included rape,
systematic extortion, looting of villages, commandeering of vehicles,
recruitment of children, and torture and summary execution of suspected rebels.[253]

On May 8, 2000, armed men in Sankoh’s Freetown residence opened fire on a crowd of civilian demonstrators, killing 19.[254]
Following this attack, Sankoh was arrested. Some have argued that his arrest
and the resulting change of leadership in the RUF helped encourage the eventual
implementation of the peace accord.[255]

Rather than solidify peace, successive amnesties had the
opposite effect in Sierra Leone. Inclusion of a general amnesty in the initial
peace agreement created the expectation that other agreements would include the
same provision, thus further emboldening potential rights abusers. The pardons
and ultimately the high government position for rebel leader Sankoh showed that
combatants would pay no price—and indeed would even be rewarded—for
their horrific crimes.[256]

B. Angola

The Angolan civil war, which began in 1975, continued
through six successive amnesties. The war’s long duration, intensity, and
scope eventually involved most Angolans either as participants or victims.[257]
The failure of influential states to address serious international crimes
committed by the warring parties greatly contributed to the resumption of
conflict. While we do not contend that lack of accountability (either
nationally or internationally) was the sole cause of renewed hostilities, the
certainty that serious international law violations would go unpunished was a
contributing factor in how events unfolded.

1. The Bicesse Accords

Internal armed conflict in Angola started shortly before
independence from Portugal in 1975 when three nationalist groups that had been fighting
colonial rule battled each other for control of the capital, Luanda.[258]
In the years following independence, the war spread and outside forces became
involved as the conflict became a proxy arena for the Cold War stand-off between
the United States and the Soviet Union.[259]

In January 1989 Angolan President Jose Eduardo
Dos Santos made an overture to rebel National Union for the Total
Independence of Angola (União Nacional pela Independência Total de
Angola, UNITA) leader Jonas Savimbi that led to a ceasefire in June 1989. The
offer was reportedly for Savimbi to agree to temporary exile in exchange for
amnesty and national reconciliation. Although the ceasefire collapsed quickly,
the following 18 months saw sustained efforts to achieve a peaceful settlement
even as fierce fighting continued. In May 1991 talks resulted in an agreement
known as the Bicesse Accords.

The Bicesse Accords ratified the ceasefire, called for
integration of government and UNITA forces into the Angolan Armed Forces, and
prohibited either side from purchasing weapons. It also set the terms for Angola’s first nationwide elections. Despite the widespread human rights abuses
committed by both sides (including deliberate killing, destruction of villages,
and forcible conscription of children into the armed forces), no provisions for
accountability were included.[260] On the
contrary, shortly after the accords were signed, an amnesty law was passed by
parliament.[261]

Although the Bicesse Accords had required UNITA and
government (led by the Movement for the Popular Liberation of Angola (MPLA)) forces
to demobilize, both sides were uncooperative and retained secret armies. The
ultimate failure of the accords was a result, in part, of the inability of the
major international actors, notably the US and Soviet Union, to effectively
ensure that they were implemented. The UN mission that was established for
Angola, the UN Angola Verification Mission II (UNAVEM II), was ineffectual in
ensuring that demobilization was taking place: its mandate was limited to
monitoring and verifying actions taken by the government and UNITA to implement
the accords.[262]UNAVEM II was unable to adequately investigate
violations of the accords and reports of political killings or intimidation. As
a result, UNAVEM II was virtually silent on human rights abuses, including the
much publicized 1991 murders of senior UNITA leaders Tito Chingunji and Wilson dos Santos and their families. Although then-US Secretary of State James Baker requested
a detailed explanation of the deaths, little was done to demand accountability
for the brutal murders.[263] This
contributed to both sides increasingly feeling confident enough to violate the
peace accords by intimidating suspected opposition sympathizers and by not properly
disarming and demobilizing their armed forces.[264]

The elections called for by the Bicesse Accords were held in
late September 1992. After Savimbi lost the election, UNITA rejected the
results and returned the country to civil war by remobilizing its forces. In
response, MPLA-armed civilians conducted a witch hunt of supposed UNITA
supporters in Luanda, murdering thousands, a memory which still invokes fear in
Angolans.[265] Less
than a month after the elections, the conflict resumed. It lasted until
November 1994 with the signing of the Lusaka Protocol.

2. The next war and the Lusaka Protocol

The next phase of war, from 1992 to 1994, was notable for
systematic violations of the laws of war by both the government and UNITA
rebels. Indiscriminate shelling of starving, besieged cities by UNITA resulted
in massive destruction and loss of civilian life. Indiscriminate bombing by the
government also took a high civilian toll. In two years of fighting, it is
estimated that 300,000 Angolans died, probably more than during the preceding
16 years of conflict. The UN reported that as many as 1,000 people were dying
daily between May and October 1993, more than any other conflict in the world
at that time.[266]

Despite widespread war crimes, again little effort was made
to hold perpetrators to account. Apparently fearing that public attention to
human rights abuses by the government and UNITA might jeopardize the peace
process, the US State Department largely kept silent. State Department
officials testifying before Congress during this period concentrated on
developments in the peace process and on humanitarian concerns, but there was
little public censure of the warring parties for abuses against noncombatants.[267]

Significant military gains by the government during this
cycle of war forced UNITA to make greater concessions in the Lusaka peace
process than it had at Bicesse.[268]
Nonetheless, a general amnesty for “illegal acts” perpetrated
before the ceasefire was the first issue agreed upon by both sides during the
1993-1994 Lusaka peace talks.[269] Angolans
were called upon to “forgive and forget the offenses resulting from the
Angolan conflict.”[270]

Both sides initialed the Lusaka Protocol on October 31,
1994. On November 10, 1994, the National Assembly passed an amnesty law
covering crimes committed in the military conflict from October 1, 1992, up to the
signature of the Lusaka Protocol.[271]

Despite the signing of the Lusaka Protocol, both parties
continued to prepare for resumption of hostilities. International prohibitions
on arms shipments were neither comprehensive nor enforced.[272]

The UN also overlooked the ongoing human rights abuses that
continued to occur between 1994 and 1998.[273] Although
the United Nations missions established a Human Rights Division following the Lusaka protocol, a lack of transparency and public reporting on violations of that
agreement hampered its implementation. The UN’s strategy of refraining
from disclosure of public action against violations of the accords and failure
to implement the accords once again undermined any respect that UNITA or the
government had for the Lusaka Protocol. Even when the head of UNITA’s
delegation to the UN commission that oversaw implementation of the Lusaka protocol was assaulted on camera by UNITA cadres while on official duties, the UN turned
a blind eye.[274]

National courts were also unable to establish accountability
for violations of the Lusaka Protocol. A 1994 law provided that military
authorities had discretion in deciding whether soldiers suspected of committing
crimes against the civilian population would be tried before military or
civilian courts. In practice, military personnel alleged to be responsible for
violations against civilians were rarely investigated, much less referred to
civilian courts.[275] The
small possibility of accountability ended when, in May 1996, the National
Assembly formally approved another amnesty law—“to underline the
spirit of tolerance and the guarantee of harmonious relationship between
Angolan nationals”—for all human rights abuses committed between
May 31, 1991, and May 9, 1996.[276]

3. The final phase of conflict

Impunity eroded confidence in the peace process and created
a vicious cycle of rights abuses that steadily worsened and ultimately
undermined the Lusaka Accords.[277] The resumption
of full-scale fighting in December 1998 demonstrated the failure of the
UN’s “see no evil, speak no evil” strategy. This final period
of fighting, between 1998 and 2002, was the most brutal and was marked by
widespread laws of war violations by both sides.[278]
Both the government and UNITA targeted the civilian population, shelling
densely populated areas and planting anti-personnel mines across the
countryside. In November 2000 Médecins Sans Frontières (MSF)
issued a report that documented acts of terror, mutilation, and unlawful reprisals
against civilians, including pregnant women, children, and the elderly. The
report indicated that the displaced persons MSF interviewed distinguished
between how the war was fought “before” the 1994 Lusaka agreement
and afterwards, affirming that executions and acts of great cruelty perpetrated
by armed groups on both sides had become increasingly common as part of a
policy of terrorizing the civilian population.[279]
Whole cities were reduced to ruins and hundreds of thousands of people were
killed or died from war-related deprivation and disease.[280]
Between 1998 and 2002 the United Nations Office for the Coordination of
Humanitarian Affairs (OCHA) estimated that 3.1 million people were forced from
their homes as a result of indiscriminate tactics used by both government and
UNITA forces against the civilian population. This number greatly exceeded the
approximately 1 to 2 million people who were displaced during the previous war.

Although in 1999 the Angolan National Assembly declared
UNITA leader Savimbi a “war criminal and international terrorist”
and sought his arrest,[281] the
following year, in September 2000, the National Assembly reversed course and
offered a pardon to Savimbi “if he were to ask for [it] and ask for the
forgiveness of the Angolan people.”[282] In
December 2000 the government again granted amnesty to all those who laid down
their arms and intended to embrace the peace process, including Savimbi. A year
later the Angolan government still held open the possibility of a pardon for
Savimbi, suggesting three possible scenarios for him: capture and trial as a
war criminal, surrender and pardon, or death in combat. On February 22, 2002,
he was killed in combat.[283]

It is clear that the removal of Savimbi from the situation
played an important role in ending the conflict. His death in February 2002
prompted UNITA to return to the negotiating table.[284]
Two days before signing the Memorandum of Understanding between UNITA and the
government (also known as the Luena Accord after the eastern Angola city in
which it was signed) in April 2002, the National Assembly unanimously approved
a blanket amnesty law for UNITA and the Angolan Armed Forces for all
infractions of military discipline and crimes against the state that security forces
committed during the conflict.[285] The
Luena Accord itself contains a general amnesty law for all crimes committed
during the conflict.[286]

The successive failed efforts to broker peace with promises
of amnesty in Angola are another example of impunity failing to achieve the
desired results. Nonetheless, in this instance, after 27 years of bloodletting,
the Luena Accord did bring an end to the conflict.

C. Sudan

In Sudan, longstanding impunity for the state’s use of
abusive ethnic militias to attack civilians has contributed to the repeated use
of this tactic with devastating results for civilians in different areas across
the country. The tactics used in recent years in Darfur—including the
widespread targeting of civilians—were first employed during the country’s
civil war in the south. Notably, the UN Security Council remained silent and
never once condemned Khartoum or rebel factions for human rights abuses
throughout that conflict in the 1980s and 1990s; nor did the peace agreement that
ended the civil war include provisions for accountability. Lack of consequences
for committing international crimes in the south likely affected government
decisions about waging war in Darfur since 2003.[287]

1. North-south conflict

The 21-year civil war between the Sudan People’s
Liberation Army/Movement and the central Sudanese government ended with the
signing of the January 2005 Comprehensive Peace Agreement.[288]
More than two million civilians are estimated to have died during the conflict
and four million people were displaced.[289]

To stem the rebel tide in south Sudan, the government used “scorched
earth” tactics to target rural communities perceived to be sympathetic to
the SPLA. From the mid-1980s, ethnic militia known as muraheleen (or murahilin)
were a key part of this counterinsurgency campaign.[290]
The militia, armed with government-supplied weapons, were allowed full license
to loot cattle, to burn villages, and to kill, injure, or capture Nuer and
Dinka civilians for use as slave labor.[291] Along
with government forces, the muraheleen destroyed granaries, fields, and wells,
rendering villages uninhabitable.[292] As the
war continued, the Sudanese government launched offensives in which hundreds of
muraheleen on horseback raided villages as part of an effort to displace the
population.[293] The
government also undertook extensive aerial bombing campaigns, sometimes backing
ground operations by the muraheleen, which killed civilians and displaced tens
of thousands of people.[294] In the
south, the government denied humanitarian access to areas of assessed civilian
need without regard to human deprivation.[295]
Militia raiding, government bombing, and the simultaneous denial of
humanitarian relief caused tens of thousands of deaths from famine and disease
in Bahr el Ghazal in 1998 alone.[296]

Human Rights Watch also documented abuses by the SPLA,
particularly after the movement splintered, including targeted and
indiscriminate attacks on civilians, destruction of homes, and pillage of grain
and livestock. The SPLA and its offshoots also did not pursue accountability
for these abuses but rather included amnesty provisions in ceasefire agreements
or conventions aimed at resolving disputes between the rival factions. In some
cases, this resulted in freeing military commanders who had been convicted of
abusing their positions and of attacking civilians.[297]

2. Darfur

From the early 1980s until mid-2003 a combination of
extended periods of drought, competition for dwindling resources, lack of good
governance and the rule of law, impunity for crimes, and the easy availability
of guns made local clashes between Arab nomads and ethnic Fur increasingly
bloody and politicized.[298] A
wide-reaching 1994 administrative reorganization by the government of President
Omar al-Bashir in Darfur gave members of Arab ethnic groups new positions of
power that the Masalit, like their Fur and Zaghawa neighbors, saw as an attempt
to undermine their traditional leadership role and power of their communities
in their homeland.[299]
Communal hostilities broke out in 1998 and 1999 when Arab nomads began moving
south with their flocks earlier than usual.[300]
Starting in early 2003, rebel movements emerged calling for a power-sharing
arrangement with the government and an end to tribal militias.[301]

From April 2003 the government of Sudan pursued a strategy
in Darfur strikingly similar to that which it had pursued in the south. The
lack of consequences for the crimes in the north-south war, and the silence of
the Security Council in the face of those atrocities, sent the message to Khartoum that there would be no consequences for using the same tactics in Darfur.

In Darfur, as in the south, the government relied on the
practice of providing selected Arab nomads (who had easier access to small
villages in rural areas than cars and tanks) with automatic weapons and free
rein to target civilians in the name of government counterinsurgency. Janjaweed
militias, like the muraheleen, were provided the opportunity to loot and to access
grazing that they had long coveted. This was an incentive to pursue Khartoum’s policy of “ethnic cleansing.” The government paid and armed
the Janjaweed just as it had the muraheleen.[302] In
both situations, the government used militias to increase the deniability of
government involvement in atrocities, despite the fact that the militia was an
essential part of the government’s counterinsurgency strategy. Moreover,
both militias were armed and officered by the army, were officially part of its
Popular Defense Forces, and benefited from immunity from prosecution as a
result of a presidential decree prohibiting prosecution of armed forces without
permission of “the General Commander.”[303]

Some of the same personnel who had organized the earlier
counterinsurgency operations in the south were redeployed in Darfur. For
example, Ahmed Haroun, the first target of an International Criminal Court
warrant for crimes in Darfur, was the chief of staff for the governor of North
Kordofan in the late 1990s. While working in Kordofan, Haroun was allegedly
responsible for mobilizing the muraheleen and for planning and supplying military
operations against rebel targets in that area. He later applied this experience
to coordinate Janjaweed militia activities in Darfur as state minister of the interior
responsible for Darfur.[304]

The pattern of conflict is also quite similar, only much larger
in scale. The government and its proxy militia forces targeted the civilian
population through a combination of indiscriminate and targeted aerial
bombardment, a scorched earth campaign, and a denial of access to humanitarian
assistance. In northern Darfur, aggressive aerial bombardment was followed by
ground attacks by Sudanese army troops and Janjaweed. The bombing by
Soviet-designed Antonov cargo planes in north Darfur was similar to the pattern
of Antonov bombing in southern Sudan.[305] Key
elements of the government’s campaigns in both southern Sudan and Darfur included destruction of water sources, burning of crops, and theft of livestock.

One purpose of both campaigns was, among other objectives,
to destroy any real or potential support base for the rebels in the civilian
population. The government’s strategy in Darfur, as it was in the south,
was to remove rural populations from large areas of the region, that is, “draining
the sea from the fish.”[306] Within
a year, hundreds of villages in Darfur were destroyed, 750,000 people were
displaced, and more than 110,000 fled across the border to Chad.[307]
Five years later, attacks continue, over 2.5 million people are displaced, and
civilian casualties number in the hundreds of thousands.[308]

3. Naivasha peace talks

Peace talks between the north and south began in June 2002
in Naivasha, Kenya, and continued until January 2005. While the negotiations
were underway in early 2003, a Darfur rebel movement, the Sudan Liberation Army
(SLA) launched an attack on El Fashir airport and in response the Sudanese
government began committing large-scale attacks against civilians in Darfur. Throughout the north-south talks, the participants and international negotiators did
not insist that the peace agreement include provisions to hold the government
and rebel SPLM/A accountable for the massive human rights abuses that were
committed during the war.[309] The United States and other countries involved in the Naivasha talks were reluctant to raise the ongoing
crimes in Darfur for fear of jeopardizing the talks.[310]
Ultimately, the Comprehensive Peace Agreement did not contain provisions
relating to justice or reparations for victims.

By failing to put accountability on the agenda, negotiators
demonstrated that there were no consequences for the massive atrocities that
had taken place in the south—the implication being that there would be no
consequences for similar attacks on civilians in Darfur or for ongoing attacks
in the south. In early 2004, in addition to the abuses in Darfur, the government
conducted a scorched-earth campaign that displaced 100,000 civilians from the
Shilluk lands in the Upper Nile.[311]

4. Ongoing impunity

The Sudanese government has maintained its policy of
impunity with respect to Darfur. Despite the establishment of the Special
Criminal Courts on the events in Darfur in 2005, no senior official has been
prosecuted for atrocities in Darfur, and no one has been charged for war crimes
or crimes against humanity.[312]
Despite occasional proclamations about seeking justice (made when the threat of
being held to account at the ICC seems imminent), the Sudanese government has
failed to prosecute local, regional, and national officials who planned,
coordinated, and implemented “ethnic cleansing” or were otherwise
implicated in war crimes and crimes against humanity. Instead of being
investigated, these individuals have been rewarded. A notorious Janjaweed
leader, Musa Hilal, who is subject to sanctions by the Security Council, was
appointed to a post as a presidential advisor. Another Janjaweed leader who is
the subject of an ICC arrest warrant, Ali Kosheib, was in Sudanese custody in
relation to other events in Darfur, but was released from custody without a
trial in October 2007. Ahmed Haroun served until May 2009 as state minister for
humanitarian affairs tasked with coordinating humanitarian assistance for the
very people that he is charged with victimizing. He has been given a series of
high-profile appointments, including co-chairing a committee designated to hear
human rights complaints as part of the Comprehensive Peace Agreement. Recently
he was reassigned to the position of governor of the sensitive oil-rich
north-south border province South Kordofan.[313]

Meanwhile, in another reprise of scorched earth tactics,
large-scale attacks on villages by Janjaweed militia and Sudanese ground
troops, supported by attack helicopters and aerial bombardments, erupted in
February 2008.[314] In addition,
in December 2007 and May 2008, clashes were reported in Abyei, a disputed oil-rich
region that both north and south Sudan would like to incorporate.[315]
In those cases the government was again reported to have been using
government-backed Arab militias to drive other ethnic groups out of areas with
oil.[316]

The absence of real consequences for its unlawful tactics likely
encouraged government officials in Khartoum to believe that they could wage a
similar war against civilians in Darfur with impunity. Although there were a
number of causes of the conflict in Darfur, the climate of impunity in Sudan for these offenses doubtless was a contributing factor. There was no obstacle to the
government adopting the same strategy that they had used in the south, and Arab
nomadic groups had no reason to fear participating in the commission of crimes,
particularly if promised the opportunity to loot and pillage with impunity. The
failure of UN bodies and influential states to demand accountability for war
crimes and crimes against humanity in southern Sudan showed that there was
little to fear by deploying such unlawful tactics and encouraged their use in
later conflicts on an even larger scale. As one Darfuri refugee interviewed in
a camp along the Chad border said, “If there were justice in Sudan, we
wouldn’t be here.”[317]

Part Two: Long-Term Impact

Even outside the immediate pressures of peace talks, governments
and other international actors may find it more expedient not to demand
accountability for gross human rights violations. Human Rights Watch has
documented several situations in which this decision to ignore grave abuses has
had very damaging long-term consequences. Tolerance of impunity can contribute
to renewed cycles of violence, both by implicitly permitting unlawful acts and
by creating an atmosphere of distrust and revenge that may later be manipulated
by leaders seeking to foment violence for their own political ends. By
contrast, pursuing justice in the long run may help strengthen rule of law by
enhancing domestic criminal enforcement mechanisms. Holding trials can help
combat revisionist versions of events by those who seek to deny that crimes
occurred. An accurate account can enhance future generations’
understanding of these events. Ultimately, successful investigations and
prosecutions may have some deterrent effect by, at a minimum, increasing awareness
of the types of acts that are likely to be punishable offenses.

VI. Renewed Cycles of Violence

Peace without justice cannot be sustainable. It is a
terrible mistake to believe that people will simply forget. Even after a
hundred years, sometimes even after several hundred years, unpunished crimes
continue to represent huge stumbling blocks in establishing peaceful, normal
relations between some states.

—Carla Del Ponte, former International Criminal Tribunal for the former Yugoslavia
prosecutor[318]

While there are undoubtedly many factors that influence the
resumption of armed conflict, and we do not assert that impunity is the sole
causal factor, Human Rights Watch research demonstrates the negative effects of
the international community’s failure to confront abuses outside the
context of peace negotiations. Absence of accountability in fair and impartial
trials for those most responsible for crimes leaves the desire for retribution
through legitimate channels unsatisfied. Without individualizing guilt, the
notion of collective responsibility for crimes has greater resonance, and it is
easier for blame focused on a group to be passed from one generation to the
next.

A well-known example of this is Yugoslavia. Assumptions of
collective ethnic guilt rooted in atrocities dating back to the Second World
War were important in enabling ultra-nationalist politicians in the 1990s to
divide communities in Bosnia, Croatia, and Serbia and help sow the seeds for
intercommunal violence. Over 40 years after the end of the Second World War,
the lack of accountability for atrocities laid the groundwork for propaganda seeking
to instill in Serbs a fear of genocide. Influential academics at the Serbian Academy of Arts and Sciences in 1986 tapped into deeply held sentiments when they
proclaimed that except during the Ustasha (Croatian pro-Nazi) period during the
Second World War, “Serbs in Croatia have never been as endangered as they
are today.”[319] Slobodan
Milosevic, in his opening statement for his defense before the ICTY, also invoked
“the Ustasha genocide over the Serbs[, ...]this terrible mass crime from
the not so distant past” to try to explain Serbia’s reaction to the
February 1990 rally at which Croatian leader Franjo Tudjman said that the
creation of an independent Croatia was an expression of “the historical
aspirations of the Croatian people.”[320]
Milosevic characterized the response of the Serbian people (such as placing
barricades to the entrances of their settlements during the “log
revolution” and other acts in defense of Vukovar characterized by the
ICTY as criminal) as collective defense in response to the “recurring
Ustasha terror and ideology.”[321]

Serbian media gave increasing prominence to this alleged
threat facing Serbs in Yugoslavia in the late 1980s and early 1990s. Years
later the ICTY noted that following Slovenia’s and Croatia’s
declarations of independence, “[p]ro-Serb propaganda became increasingly
visible ... . The Serb media propagandised the idea that the Serbs had to arm
themselves in order to avoid a situation similar to that which happened during
World War II when the Serbs were massacred. Terms like ‘Ustasa’, ‘Mujahideen’
and ‘Green Berets’ were used widely in the press as synonyms for
the non-Serb population.”[322] A Serb
leader from Croatia, Milan Babic, admitted to making ethnically-based
inflammatory speeches, stating that he was strongly influenced by Serbian
propaganda that repeatedly referred to an imminent threat of genocide by the
Croatian authorities against the Serbs in Croatia.[323]

The failure to establish individual accountability and to address
the past in Yugoslavia during Tito’s iron-fisted reign created suppressed
resentments that were later tapped by ambitious politicians for their own
political and nationalistic ends. The following are other examples of
situations in which ethnic tension fostered by impunity contributed to cycles
of violence.

A. Kenya

Following the December 27, 2007, elections in Kenya,
violence erupted throughout the Rift Valley and in the west of the country as angry
citizens burned and looted factories, shops, and homes, and chased those
perceived to be supporters of President Mwai Kibaki (the declared winner of the
disputed election) away. Members of Kibaki’s Kikuyu tribe in particular
were targeted. Kikuyu militias then struck back. In the two months after the
election, over 1,100 people were killed.

The violence echoed previous episodes of political violence
in Kenya for which no one was held accountable. Many of those implicated in the
post-election violence were high-ranking politicians who had been implicated in
organizing political violence surrounding the 1992 and 1997 elections but have
never been brought to account and continued to commit offenses with impunity.
By failing to take action against those most responsible for violence,
successive Kenyan governments sent the message that organizing or inciting
political and ethnic violence carried no penalty. By taking little action in
the face of consistent and chronic patterns of impunity that characterized Kenya’s governments for the past two decades, influential states and international
bodies contributed to the recurrence of violence.

By late 1991, concerted domestic and international pressure
on the government of President Daniel Arap Moi, including the suspension of aid
by the World Bank and bilateral donations conditioned on economic and human
rights reforms, forced Kenya to legalize a multiparty system. One year later,
in December 1992, elections took place. The return to a multiparty system
coincided with the eruption of ethnic violence in Kenya’s Rift Valley,
Nyanza and Western provinces. Although the government first portrayed the “tribal
clashes” as the result of longstanding conflict over land or the
spontaneous response of ethnically divided communities to the heated election
campaign, it soon became clear that the violence was being coordinated and that
high-ranking government officials had been involved in training and arming “warriors”
from President Moi’s ethnic group, the Kalenjin, to attack those from
other ethnic groups.

The violence was fomented by “majimbo” rallies
held by certain Kalenjin and Maasai politicians who were members of the
president’s party. The politicians asserted that the Rift Valley was
traditionally Kalenjin/Maasai territory. “Majimboism” was a way to
demand the expulsion of all ethnic groups except those who resided in the area
before colonialism.[324] Not
coincidentally, the groups to be expelled were those predominantly perceived as
those who supported the political opposition.[325]
It was a kind of ethnic cleansing by constituency.

Kalenjin warriors in numerous similar attacks killed
civilians and looted and burned farms inhabited by Kikuyus, Luhyas, or Luos.
Some less organized retaliatory attacks against the Kalenjin also occurred,
creating an escalating cycle of violence and a growing atmosphere of hatred and
suspicion between communities that had lived together more or less peacefully for
years.[326] About
300,000 people were driven from their land. The changing demographics caused by
the displacement had significant political impact: the Rift Valley province,
which was repopulated with government supporters, contains the largest number
of seats in Parliament.[327]

Refugees from the 1992 election violence reported that the
police and army stood by and did nothing during attacks. Although the
government claimed that over 1,000 charges had been brought for the violence,
many of the cases were not pursued and those arrested were disproportionately
non-Kalenjin.[328]

Although foreign governments expressed dissatisfaction with
aspects of Moi’s rule, they did not make it a priority to press him to
hold perpetrators responsible for politically motivated violence to account.[329]
United States officials made several statements throughout 1993 protesting
actions taken by the Kenyan government against freedom of expression, but the
United States failed to take a strong position regarding the Kenyan government’s
responsibility for the Rift Valley violence: the only US government statement
on the violence, in September 1993, publicly welcomed the government’s
decision to declare security zones, showing unwarranted faith in security
forces acting properly in these circumstances, and saying nothing about
accountability.[330] In
December 1994 Kenya’s bilateral and multilateral donors expressed
satisfaction with Kenya’s economic and human rights record and pledged
$800 million in new aid commitments. The resumption of aid without human rights
cautions seemed to embolden the government, which appeared to perceive the new
aid commitments as tacit consent from the international community to revert to
past practices of repression.[331]

Levels of violence rose again in the period leading up to
the 1997 elections. In August 1997, a series of attacks in the Coast province
killed 40 people and displaced over 120,000. Leaflets were distributed that proclaimed,
“The time has come for us original inhabitants of the coast to claim what
is rightly ours. We must remove these invaders from our land.”[332]
The warnings and attacks were strikingly similar to the “ethnic”
violence that had taken place prior to the 1992 elections in the Rift Valley
and had targeted some of the same ethnic groups, and they occurred shortly
after voter registration indicated that the government would lose the province.[333]
The Coast raiders targeted members of ethnic communities that had voted
disproportionately against the ruling Kenya African National Union (KANU) party
in the 1992 election causing KANU to lose two of the four parliamentary seats
in one district that year. As a result of the 1997 attacks, by some estimates
75 percent of likely opposition voters were displaced by the violence and many
lost identity documents, making it impossible for them to vote even if they
returned to the Coast province constituency where they were registered.[334]
As a result, Moi captured the vote that he needed in the violence-stricken
province in order to retain the presidency.[335]

Once again, the government response to the violence was
inaction. Despite advance warnings, the police took no action to stop the
raids. Police investigations when they did occur were seriously inadequate,
leading courts to eventually acquit all but a tiny handful of the accused
raiders. Coast province leaders intervened to secure the release of arrested
politicians. In the end, despite hundreds of arrests and a long governmental
inquiry, no one was brought to justice for organizing the attacks.[336]
A delegation of human rights groups including Human Rights Watch found that
following the failure of the government to act, there were increasing acts of
ethnic hatred and violence. Members of the Kikuyu community retaliated against
attacks in an organized fashion for the first time.[337]

In July 1998 the Akiwumi Commission (named for the
commission’s chair) was established to investigate the so-called “tribal
clashes” that occurred in Kenya between 1991 and 1998 and to recommend
further investigation or prosecution of perpetrators. The commission sat for 11
months and heard considerable evidence linking ruling party politicians to the
violence. It submitted its final report to the president in August 1999. The
president refused to release the report publicly for over three years, even in
defiance of a court order—the report was finally released in October
2002. Though many high government officials were implicated, no action was
taken to prosecute them.[338] Donor
nations and the World Bank, while conditioning financial aid on anti-corruption
and good governance, failed to press for accountability for past injustices including
the release of the commission report and prosecution of major crimes.

The 2007-08 violence continued the pattern of one party’s
supporters targeting members of ethnic groups associated with the political
opposition. In this case, in the wake of disputed election results, Human
Rights Watch found that local leaders in several Kalenjin communities backing
the opposition Orange Democratic Movement actively fomented violence against Kikuyu
communities that they assumed voted for the ruling Party of National Unity, and
which in response fought back.[339]
Reprisals by militia groups on both sides of the political divide and excessive
use of force by police resulted in hundreds of deaths in late December 2007 and
early January 2008. National leaders did little to rein in the abuses of their
supporters.[340]

In the months leading up to the December 2007 election,
European Union observers noted 34 election-related deaths and catalogued 190
violent incidents ranging from intimidation to murder. The EU mission noted that,
“In most cases, abuses did not receive an appropriate response from the
police and the judiciary and there was therefore impunity towards perpetrators.
Candidates were also observed using hate speech on a limited number of
occasions.”[341]

This time, the international community played a positive
role in stopping the violence. Foreign governments, the African Union, and
United Nations agencies placed significant diplomatic pressure on the Kenyan
government and the opposition to control violence, respect the human rights of
Kenyans, and reach a political settlement.[342] On February 28, 2008, an agreement was reached between the ruling party and the opposition
party that paved the way for a coalition government. The agreement, brokered by
former UN Secretary-General Kofi Annan, included a provision establishing a
Commission of Inquiry into the post-election violence. The Commission made
recommendations for bringing those responsible for post-election violence to
justice, including the establishment of a special tribunal to investigate and
prosecute those most responsible for the violence.

Once again, however, Kenya’s leaders have so far failed
to end impunity. The Kenyan parliament in February 2009 rejected legislation that
would set up the special tribunal (for more on the special tribunal see Chapter
VII.C).

The repeated failure to stem the ethnically-based political
violence and hold perpetrators of human rights abuses to account created a
climate of impunity in Kenya that led to cycles of violence. The atmosphere of
distrust and division created by the longstanding lack of justice has been
repeatedly manipulated by leaders in support of their own political agendas. As
with Sudan and Rwanda, because the violence was state-sponsored, concerted
international pressure offered the only hope for ensuring accountability for
massive crimes. While in Kenya the pressure stopped the violence, failure to
sustain that pressure and to actually end impunity is likely to result in more
violence sometime in the future. The Kenyan government’s failure to
establish a special tribunal to address 2007-08’s post-electoral violence
risks creating a precedent of impunity that threatens renewed violence in the
next electoral season.

B. Rwanda

In the 13 weeks after April 6, 1994, at least a half a
million people perished in Rwanda, including perhaps as many as three-quarters
of the Tutsi population and thousands of Hutu who opposed the killing campaign
and the forces directing it. The stage was set for the genocide by years of
violence for which no one was held accountable. Lack of accountability was a
contributing factor to the 1994 events on a number of levels. In particular, a
significant contributing factor to the mass atrocities was the international
community’s willingness to overlook massacres that occurred between 1990
and 1993. Because the government sponsored the violence, the role of
international bodies and influential states in demanding accountability was
essential.

The population in Rwanda was comprised of three groups: the
Hutu, by far the largest group; the Tutsi; and the Twa, a group so small that it
played no political role. Historically, Hutu and Tutsi shared a common culture
and occasionally intermarried, though as the state developed, an elite took
shape and its members were called the Tutsi; the masses became known as Hutu.
During the years of colonial rule, first German, then Belgian, the categories
of Hutu and Tutsi became increasingly clearly defined and opposed to each
other, with the Tutsi elite seeing itself as superior and having the right to
rule, and the Hutu seeing themselves as an oppressed people. In the
mid-twentieth century, as the colonialists were preparing to leave, Hutu
overthrew the Tutsi elite and established a Hutu-led republic. In the process they
killed some 20,000 Tutsi and drove another 300,000 to exile. This event, known
as the 1959 revolution, was remembered by Tutsi as a tragic and criminal event,
while for Hutu it was seen as a heroic battle for liberation.

During the 1960s some of the Tutsi in exile led incursions
into Rwanda, seeking to unseat the new Hutu leadership. Within Rwanda officials incited and, in some cases, led attacks against Tutsi still resident in
the country, accusing them of supporting the incursions. Most of the 20,000
counted as victims of the revolution actually died in these reprisal attacks
and not in the early combat surrounding the change of power.[343]

Following the 1991 introduction of a multiparty system,
authorities tolerated or even encouraged political violence against rivals.
Some of the practices used by political parties against opponents (such as apprehending
persons at checkpoints, using whistles to signal attacks, and perpetrators covering
their faces with chalk) were used again during the genocide. More importantly,
the tolerance of violence during this period led to an acceptance of violence in
pursuit of political ends as “normal.”[344]

In addition, in the three-and-a-half years prior to the
genocide, some 2,000 Tutsi and dozens of Hutu were slaughtered in what was
effectively a rehearsal for what was to come. Playing upon memories of past
domination by Tutsi and the legacy of revolution that overthrew their rule, President
Juvenal Habyarimana and his circle campaigned to create hatred and fear of the
Tutsi as a way of pulling dissident Hutu back to his side.[345]
Propagandists echoed and magnified the suspicion sown by Habyarimana and the officials
around him both before and during the genocide.[346]
In more than a dozen communes, in the years 1990-93, there were 17 incidents of
serious violence. Authorities tolerated and incited small-scale sporadic
killings of Tutsi throughout this period and also initiated attacks in reaction
to challenges that threatened Habyarimana’s control. In particular,
massacres of Tutsi occurred in Kibilira 10 days after the October 1, 1990,
invasion by the Tutsi Rwandan Patriotic Front (RPF) (led by children of the
Tutsi who fled the 1959 revolution) and again immediately following the RPF
strike at Ruhengeri on January 22, 1991. By organizing reprisals against Tutsi
civilians, the government was able to rid itself of some of its declared “enemies.”[347]

Local officials directed the early massacres of Tutsi in
several places, telling people that participating in the attacks was their “umuganda”
or monthly communal work obligation. These attacks were well-orchestrated by
the government. For example, in January 1993 two burgomasters halted the
attacks during the visit of an international commission investigating human
rights violations, saying that the slaughter would resume when the group left.
Killings did in fact begin again within several hours of the commission’s
departure.[348] This
type of control indicates that the violence could have been prevented.

No one, neither officials nor ordinary citizens, was ever
convicted of any crime in connection with the massacres that took place between
1991 and 1993.[349] The
prefect of the prefecture next to Kibilira (where the first massacre occurred
in 1990) warned in early 1991 that the killings might begin again because those
involved in the killings had been released from prison and “were boasting
of ‘brave deeds’ that had gone unpunished.”[350]

The lack of accountability (and indeed the official support
for the violence) sent a clear message that not only would such atrocities be
tolerated, but also encouraged. Impunity for earlier crimes made it easier to
mobilize the masses for the greater slaughter that took place in April 1994.

Because there was no justice in national courts for the
state sponsored violence, the primary hope for accountability for these crimes
was pressure from the international community. Relative silence on an
international level, therefore, played an important role in enabling the
genocide to occur.

In pursuing ethnic violence as a way to keep political
power, Habyarimana and his supporters stayed alert to any international
reaction to the killings. Mindful of Rwanda’s dependence on foreign aid,
Rwandan activists pressed international human rights organizations to form the
International Commission of Inquiry into Human Rights Abuse in Rwanda.[351]
The International Commission amassed substantial data to show that “President
Habyarimana and his immediate entourage bear heavy responsibility for these
massacres [from October 1990 through January 1993] and other abuses against
Tutsi and members of the political opposition.” The report, published March 8, 1993, was widely distributed among donor nations. International donors accepted
its conclusions and expressed concern but took no effective action to insist
that the guilty be brought to justice or that such abuses stop.

The UN special rapporteur on summary, arbitrary, and extrajudicial
executions undertook a mission to Rwanda in 1993 and produced a report in
August 1993 that largely confirmed the report of the International Commission
and concluded that in his judgment the killings were genocide under the terms
of the 1948 Convention for the Prevention and Punishment of Genocide. In
response, Habyarimana issued a formal statement in which the government “recognizes
and regrets the human rights violations committed in our country,” but the
government denied that officials took the initiative in the abuses, and
declared only that it had failed to assure the security of those attacked and
promised to undertake a series of human rights reforms.[352]
This profession of good intentions was enough to secure the continuing favor of
donors.

The international community’s willingness to accept
excuses for “lesser” massacres and its continuing acceptance of impunity
for killers in official positions contributed to further slaughter that was
unambiguously genocidal in nature. The attacks between 1990 and 1994 allowed
Habyarimana’s supporters to perfect some of the organizational and
logistical methods that they would use during the 1994 genocide. The lack of a
strong response from abroad demonstrated that this type of slaughter would be
tolerated by the international community.[353]

In the first few weeks of the 1994 genocide, international
leaders again failed to condemn the mass killings that were taking place in Rwanda. The impact that an international response might have had was only seen once the
genocide was well underway. After the US communicated its disapproval in late
April, Rwandan authorities cared enough to send orders down to the hills that
killings should be brought under control (albeit not ceased altogether; the
orders also mentioned conducting killings out of sight). The day after a phone
call by Deputy Assistant Secretary of State for African Affairs Prudence
Bushnell to the Rwandan army’s Chief of Staff Col. Augustin Bizimungu
telling him his officers would be held responsible if they did not stop the
massacres, he wrote to the Ministry of Defense saying, “it [is] urgent ...
to stop the massacres everywhere in the country.”[354]
Similarly, following international censure of the killing of orphans in Butare,
Bizimungu directed his subordinates in that town “to do everything
necessary to stop the barbarities.”[355] At a
communal council meeting in a remote area, the burgomaster warned local leaders
that satellites passing overhead could track continued violence and that such
displays would make re-establishment of good relations with the US impossible. Thus, it was seen that international censure, timid and tardy as it was,
prompted Rwandan authorities to restrict and hide killings.[356]

C. Burundi

In Burundi, the absence of criminal prosecutions has
contributed to periodic explosions of inter-ethnic strife and, more recently,
intra-ethnic political conflict. For decades the conflict in Burundi, as in Rwanda, has taken the shape of a struggle between two ethnic groups: the Hutu
(approximately 85 percent of the population) and the Tutsi (who make up around
15 percent). Most Burundians have suffered some kind of ethnically motivated
attack or have family members who have so suffered, yet few have seen justice
for these crimes.[357] Extremists
exploited the resulting anger and fear between the two ethnic groups to
instigate violence for their own ends. The ethnic nature of the conflict
disguised and embittered what was fundamentally a battle over economic and
political power. After 2003, a Hutu rebel group continued fighting a Hutu-led
government, exposing the political nature of the conflict.

Lack of access to justice for war crimes was one factor that
pushed rebel movements to take up arms and was then used by them to justify
their own abuses. An absence of accountability has also created a situation in
which leading politicians, as well as senior officials and lower-ranking
members of the police, army, and intelligence service, may have committed war
crimes against the very citizens that they are obligated to protect.

Cycles of ethnically linked violence began in Burundi under the reign of a Tutsi king, Mwambutsa, not long after it regained its independence from
Belgium in 1962. A Rwandan Tutsi refugee was accused of assassinating the
first Hutu prime minister three days after his appointment in January 1965.
When Mwambutsa appointed a Ganwa[358] rather
than a Hutu to succeed him the following October, Hutu soldiers and gendarmes
attempted a coup.[359] The
army subsequently executed several Hutu military officers and nearly all
prominent Hutu politicians. They also began to purge Hutu from the ranks of the
armed forces. Hutu in Muramvya province attacked Tutsi residents and soldiers,
and militia responded by massacring some 5,000 Hutu.[360]
An amnesty law, passed in 1967, protected the perpetrators of this violence.[361]

Violence was rekindled in April 1972 when Hutu insurgents
attacked and captured two southern Burundi towns and killed many Tutsi
residents. The army of the Tutsi-led government easily quelled the uprising but
used it as a pretext for a massive slaughter of Hutu: the army and Tutsi
militia killed an estimated 200,000 people, targeting in particular teachers,
students, clergy, and other Hutu intellectuals as well as Hutu soldiers. There
was no accountability for the perpetrators of these atrocities, which have been
termed “selective genocide.”[362] In the
following two decades, Tutsi government leaders continued the policy of
systematic discrimination against Hutu.[363]

Lack of accountability for the 1972 massacres and events in
neighboring Rwanda powerfully shaped subsequent political thought and action.[364]
Members of each group feared violence—even potential
annihilation—by the other and felt anger for past sufferings. Burundian Tutsi
viewed the slaughter of Tutsi in Rwanda following the Tutsi loss of power there
in 1959 as a warning and feared that sharing power with Hutu in Burundi would
also lead to large-scale killing of Tutsi. Hutu keenly remembered the “selective
genocide” of Hutu intellectuals in 1972 and feared and distrusted both
civilian and military authorities. They felt that they remained vulnerable to
similar attacks as long as Tutsi retained a monopoly on political and military
power. Hundreds of thousands of Hutus fled the country after the massacres in
1972; it was a group of these refugees who founded the rebel movement Party for
the Liberation of the Hutu People–National
Liberation Forces (Parti pour la libération du peuple hutu–Forces
nationales de libération, Palipehutu-FNL), in a Tanzanian refugee camp
in 1980.

When Hutu rose up in 1988 in provinces along the Rwandan
border and killed several thousand Tutsi, President Pierre Buyoya permitted the
army to restore “peace and order” by using helicopters and armored
vehicles to massacre some 20,000 Hutu.[365] Buyoya
rejected calls for an independent investigation into the 1988 massacres and
passed another amnesty law in 1990.[366] Palipehutu-FNL
launched several attacks in northwestern provinces of Burundi in 1991 and 1992 killing a number of Tutsi. In each case, the army retaliated against the
Hutu population, killing an estimated thousand civilians.[367]

On July 10, 1993, Melchior Ndadaye became the first Hutu
president of Burundi. To avert changes the president was planning, a small
group of Tutsi soldiers attempted to seize power on October 21, 1993. They
captured and later executed Ndadaye along with a number of other high-ranking
civilian political officials. Following the assassination, Hutu bands massacred
thousands of Tutsi. Burundian soldiers and national police, sometimes aided by
Tutsi civilians, massacred thousands of Hutu, including in areas where few or
no Tutsi had been killed. In a period of only a few weeks, between 30,000 and
50,000 people from both groups were slain.[368]

In response to Burundian and international outcry, the UN
Security Council established a commission to inquire into these crimes. The
commission found that “impunity has, without any doubt, been an important
contributing factor in the aggravation of the ongoing crisis.” It
concluded that acts of genocide had been committed against the Tutsi and that
indiscriminate killing had occurred against Hutu.[369]
Although the commission recommended in 1995 that international jurisdiction
should be asserted with respect to the genocide committed against the Tutsi in
1993 and should extend to other acts committed in the past, including the
effort to exterminate educated Hutu in 1972, the Security Council did not take
action to create a court (as it had done for the former Yugoslavia in 1993 and
Rwanda in 1994), and those responsible remained in power, with devastating
consequences. Donor nations also did nothing to insist that those responsible
be brought to trial—neither army officers responsible for the
assassinations of political leaders and the killings of Hutu civilians, nor the
Hutu officials and ordinary people who had slaughtered Tutsi. Those most
implicated in the killings continued to exercise power as they had before. This
demonstrated to people in both Burundi and Rwanda that influential governments
were willing to tolerate slaughter in a region that was not of strategic
concern.[370]

Burundian courts also failed to deliver satisfactory justice
for most of the 1993 crimes. The judges who tried persons accused of having
assassinated Ndadaye found guilty a number of lower-ranking military officers
but acquitted others of senior rank or more political importance. Other courts
tried only about 20 percent of the 9,500 persons jailed for supposedly having
participated in the 1993 crimes. Most of the accused were Hutu and virtually
all of the judges were Tutsi, leading many to question the credibility of the
proceedings and verdicts in these cases.[371]

The years following the 1993 massacres were characterized by
continuing cycles of ethnic violence and civil war. Two Hutu guerilla groups,
the Palipehutu-FNL and the National Council for the Defense of
Democracy–Forces for the Defense of Democracy(Conseil
national pour la défense de la democratie–Forces
pour la défense de la democratie, CNDD-FDD), attacked military targets and
Tutsi civilians in Burundi with support from the broader Hutu population; in
response, the armed forces and militia retaliated strongly against Hutu
civilians, killing hundreds of non-combatants in “pacification campaigns.”[372]

Impunity for atrocities committed by Tutsi civilians and
soldiers remained the norm. Because so few Tutsi were brought to justice for
crimes against Hutu, Hutu did not expect justice from the Tutsi-dominated
courts. For example, a military court sentenced two officers to four months in
prison for involvement in the massacre of 173 civilians in Itaba commune,
Gitega province, in 2002. The officers were not convicted of murder but rather
of failing to report the situation accurately and were immediately released
from prison since they had spent five months in jail awaiting trial.[373]
Prosecutors in the military justice system later used an immunity provision in
a 2003 agreement between a holdout rebel group and the government to justify
not prosecuting Tutsi soldiers.

Even after a series of peace agreements between 2000 and
2003 brought other Hutu rebel groups into the government, one group, the
National Liberation Forces, continued to use ethnic rhetoric to inflame
violence. The FNL sometimes invoked impunity for past crimes against Hutu as a
supposed justification for the FNL’s own abuses, as in the case of the
FNL’s slaughter of more than 150 Congolese Banyamulenge (a group
identified with Tutsi) at Gatumba refugee camp on August 13, 2004.[374]
In an August 30, 2004, press release, the FNL professed to want to know “why
the same compassion [as shown for the Gatumba victims] was not shown when there
were massacres of millions of Burundian Hutus and Rwandan refugees in the Congo.” The release also specifically referred to the 2002 Itaba commune massacre, in
which the head of the Gatumba military camp had been implicated.[375]

The 2000 Arusha Accord and subsequent agreements between the
government and various rebels groups included provisions for the eventual
establishment of a truth and reconciliation commission as well as a special tribunal
for the prosecution of conflict-related crimes. However, a 2003 ceasefire
agreement between the government and the strongest Hutu rebel group, the
CNDD-FDD, provided for “provisional immunity” for all parties to
the conflict.[376]
According to the agreement, provisional immunity would last until a truth and reconciliation
commission was in place and could establish responsibility for past crimes. A
similar provision was included in an agreement with Palipehutu-FNL in 2006.[377]

After the CNDD-FDD entered government and subsequently won
national elections in 2005, former rebels were integrated into the reformed
police and army with no vetting process. Tutsi soldiers and gendarmes were also
integrated with no regard for their past abuses. Nor was there vetting of FNL
rebels integrated into the security forces in April 2009. The likely presence
within the forces of individuals who had committed war crimes contributes to
ongoing mistrust, particularly between the population and the police, as police
officers, among others, continue to commit abuses. Others implicated in serious
abuses hold political office. The current FNL leader, Agathon Rwasa, a possible
presidential candidate in 2010, was indicted for the Garumba massacre in 2004
but has not been tried. Burundians frequently cite some senior members of other
major political parties, including Front for Democracy in Burundi(Front pour la Démocratie au Burundi, FRODEBU)
and Union for National Progress (Union pour le Progrès national, UPRONA),
as having incited past political violence, particularly between 1993 and 1996.

Given this political landscape, it is not surprising that virtually
no progress has been made in establishing the accountability mechanisms that Burundi committed to in agreements with the United Nations. Both CNDD-FDD and the FNL have
an interest in promoting “amnesty” and “pardon” over
justice, though a recent study showed that the majority of Burundian citizens
support the implementation of justice initiatives.[378]
A UN commission sent in 2004 to investigate possible mechanisms to address
impunity for serious crimes in Burundi concluded, “In an ethnically
divided society, where little agreement exists on any of the issues relating to
the major events in Burundi since its independence in 1962, there was unanimous
support for the establishment of an international judicial commission of
inquiry to ... investigate the crimes and, should it classify the crimes as
genocide, war crimes and other crimes against humanity, serve also as a trigger
mechanism for the establishment of an international criminal tribunal.”[379]
Support for such mechanisms among political leaders, however, appeared to
diminish as they became aware that they themselves could be subject to
prosecution. The international community, perhaps suffering from donor fatigue
after creation of the ad hoc tribunals for the former Yugoslavia and Rwanda,
has failed to press sufficiently for the establishment of truth and justice
mechanisms.

As Neil Kritz pointed out as early as 1996, “Some
observers would suggest that the best way to achieve reconciliation in a
situation such as that present in Burundi is to leave the past in the past. ...
If the goal, however, is something more than a tenuous, temporary pause in the
violence, dealing in a clear and determined manner with past atrocities is
essential.”[380]

The risk of armed conflict is fed by heightened fear and
hatred between ethnic groups and political factions, emotions that are both
real and manipulated by political leaders for their own ends. The failure of
the justice system to establish individual guilt enabled politicians to assign
responsibility for past crimes to the totality of the opposing ethnic group,
thus reinforcing hatred and fear among Hutu and Tutsi alike. As the
conflict’s ethnic dimensions gradually diminished and gave way to
political conflict, impunity for past crimes also contributed to conflicts
between Hutu groups. Without credible court judgments, it is easier for
politicians to establish guilt by appealing to their own version of history.[381]
Justice for all victims of serious crimes—regardless of the
perpetrator—could blunt use of ethnic hatred as a powerful tool to
mobilize followers for violence.[382]

When confronted with an apparent tension between peace and
justice, the longer-term potential benefits of accountability are unlikely to be
given much weight. However, we have seen that one underappreciated benefit
resulting from the promotion of international justice for serious crimes is its
positive impact on the development of domestic enforcement tools and the rule
of law. Prosecutions in courts far from the places where the crimes occurred
have played a role in strengthening or galvanizing the establishment of domestic
mechanisms to deal with these crimes. In part this has been done by facilitating
an environment in which confronting past atrocities became expected and
acceptable. International tribunals have also become a yardstick by which fair
trial proceedings can be measured. They have also on occasion provided some direct
assistance with capacity-building in domestic war crimes courts.

In various other ways the rise of international judicial
mechanisms has contributed both directly and indirectly to development of rule
of law. The desire to obtain and try cases handled by the ad hoc tribunals propelled
both Rwanda and the countries of former Yugoslavia to create specialized
chambers and prosecutorial mechanisms in order to meet the tribunals’
standards for transferring cases.[383] In
each country in which the International Criminal Court is investigating, steps
have been taken—at least nominally—to start domestic proceedings.
Even in countries where ICC investigations are being considered but have not
yet been opened, efforts have been made to hold perpetrators to account that
otherwise would not have occurred in order to keep the cases in national
courts. Finally, one other way in which the prospect of international justice
has promoted rule of law is by increasing awareness of crimes that fall under
international jurisdiction. As leaders keep one eye on the court, they have a new
incentive to educate their troops about what conduct constitutes a prosecutable
offense.

A. Ad hoc tribunals

International tribunals have advanced efforts to prosecute
in national courts. The scale and brutality of crimes in the former Yugoslavia and Rwanda led the Security Council to establish ad hoc tribunals to bring perpetrators
to justice for the human rights violations committed during these conflicts. In
establishing the ICTY, the UN secretary-general stressed that it was “not
the intention of the Security Council to preclude or prevent the exercise of
jurisdiction by national courts” and encouraged national courts to
exercise jurisdiction in accordance with their national laws and procedures.[384]
Nonetheless, there was limited capacity or public support for war crimes
prosecutions in the former Yugoslavia at that time. Over the years, this has changed
to some degree. The tribunals assisted in creating an environment in which, at
a minimum, there was recognition that if war crimes prosecutions had to happen,
it was preferable for them to take place in domestic courts. As the ad hoc
tribunals began preparations for closure, improving national courts became a
priority. In 2003, the Security Council noted that the “strengthening of
national judicial systems is crucially important to the rule of law in general
and to the implementation of the ICTY and ICTR Completion Strategies in
particular.”[385]

In order to give effect to the broad strategy for winding
down operations endorsed by the Security Council, the ICTY’s rules were
amended in September 2002 to grant the tribunal broader powers for referring
cases and dossiers to national jurisdictions.[386]
The same strategy was adopted at the International Criminal Tribunal for Rwanda.
This strategy spurred positive legal change in the states of the former
Yugoslavia and in Rwanda, even if the actual impact of the change is not always
clear.

1. Bosnia and Herzegovina

Profound deficiencies in Bosnia’s justice system
during and following the conflict severely limited local efforts to combat the
rampant impunity for war crimes. Although legal reform was underway as the
country recovered from the conflict, the ICTY was a catalyst for additional
changes. The tribunal was instrumental both in creating the War Crimes Chamber
in Bosnia and in ensuring its effectiveness as an institution.

As the ICTY began to contemplate how to close its
operations, its focus on creating the capacity to fairly prosecute war crimes
cases in Bosnia sharpened. A key component of the ICTY’s strategy to
clear its docket was transferring cases of mid- and lower-level accused to
national courts in Bosnia.[387]
However, it could only transfer cases if its officials were confident that Bosnia’s courts would be able to handle the cases in an effective way consistent with
internationally recognized fair trial standards.

Although legal reform had begun, there were still
deficiencies that needed to be addressed before the ICTY cases could be transferred.
To address these concerns, a 2002 report prepared by the ICTY for the Security
Council recommended the creation of a special division within the State Court
to handle war crimes cases. The report recommended that the division, for a
limited time, be composed of both international and national judges. It also
suggested a number of reforms to the Bosnian legal system (as well as practical
arrangements) that would need to be in place before transfers could occur.[388]
The Security Council endorsed the ICTY’s recommendations.[389]
The following year the ICTY and the Office of the High Representative for Bosnia and Herzegovina issued conclusions recommending the creation of a specialized
chamber within the Court of Bosnia and Herzegovina to try the most sensitive war
crimes cases. The joint recommendations resulted in a series of laws adopted in
2004 by the Bosnian Assembly that ultimately created the court. The ICTY was
heavily involved in drafting this legislation and the laws creating a
specialized war crimes unit in the prosecutor’s office.[390]

On March 9, 2005, the War Crimes Chamber in Sarajevo began operations. The ICTY Appeals Chamber referred its first-ever case to the War
Crimes Chamber on September 1, 2005. In doing so, it confirmed that the War
Crimes Chamber was fully capable of providing the accused, Radovan Stankovic,
with a fair trial.[391]
Further referrals have been made since then.

The War Crimes Chamber and the ICTY Registry and Office of
the Prosecutor remain in close contact. Officials within the War Crimes Chamber
registry and the ICTY are designated to facilitate transfer of case material
and evidence from the ICTY to the War Crimes Chamber. The prosecution teams at
the Special Department for War Crimes in Sarajevo have been provided with
access to the ICTY’s database of evidence.[392]
Defense counsel for the court also has access to the ICTY’s database on a
more ad hoc basis.[393]

In addition to cases referred to it by judges at the ICTY,
the War Crimes Chamber is responsible for dossiers submitted to it by the ICTY’s
Office of the Prosecutor where investigations have not yet been completed. Most
of its caseload, however, consists of cases initiated locally. Although the
court was initially staffed by both nationals and internationals, the chamber
is essentially a domestic institution operating under national law and
international involvement is being phased out. The court has enhanced the
capacity of professionals and institutions in Bosnia to conduct fair and
effective war crimes trials and is playing an important role in bringing
justice for the atrocities committed during the war and restoring confidence in
the rule of law. Although the court confronts a number of difficulties,
including an extensive caseload and a lack of resources, the establishment of
the court is a step forward.[394]

Prospects of international justice also may have increased
awareness, to some extent, of crimes that fall under international
jurisdiction. The ICTY’s prosecutions prompted Bosnian military leaders
to broadcast definitions of Geneva Convention offenses to their troops in the
midst of the conflict, even if this was only done to provide cover for unlawful
actions.

2. Serbia

Although the ICTY did not play a direct role in establishing
Serbia’s War Crimes Chamber, the ICTY did help spur the creation of the chamber
indirectly. Government officials who supported domestic prosecutions did so to
bolster the argument against holding trials at the ICTY, rather than out of a
genuine commitment to accountability.[395] As a
Serbian journalist told the Open Society Institute, “It’s simple.
If not for the Hague Tribunal, no one [in Serbia] would ever actually bring to
trial anyone who committed these crimes.”[396]

Some in government supported the establishment of a War
Crimes Chamber in Serbia because they believed that it would result in the
transfer of a number of cases to Serbia as part of the ICTY’s completion
strategy.[397]
Serbian Prime Minister Kostunica tried to convince the tribunal that Serbia
could prosecute cases of indictees who had not yet been arrested and
surrendered to The Hague. Anti-Hague sentiment may have also made the idea of
domestic prosecutions more palatable to the Serbian population. A public
opinion survey taken in late 2004 found that 71 percent of the people surveyed
thought that it would be better to institute war crimes prosecutions in local
courts rather than in The Hague.[398] The
Serbian War Crimes Prosecutor himself was motivated in part because the
alternative to national prosecutions was The Hague, though his incentive was
more a matter of professional and national pride.[399]

Despite opposition from extreme nationalists, the chamber
came into existence after a change in government resulted in a period of
reformist advances. Strong international engagement helped ensure that the chamber
was eventually created.[400] The
War Crimes Chamber has since had some positive impact in Serbia: its prosecutions have been seen by the public as more legitimate than those conducted in The Hague, where defendants are sometimes viewed as “heroes” or “patriots,”[401]
though many still view prosecutions as the price that has to be paid for EU
ties.

After the War Crimes Chamber was established, the ICTY
played an important role in helping it become effective. Under a 2006
Memorandum of Understanding between the ICTY Office of the Prosecutor and the
War Crimes Prosecutor’s Office in Serbia, Serbian war crimes prosecutors
have access to the ICTY’s database.[402] Former
and current ICTY staff have been engaged in facilitating contacts with ethnic
Albanian witnesses for cases involving crimes in Kosovo being handed over to Serbia from the ICTY; without this link, it may have been hard for the office to establish
a relationship with witnesses because of suspicions of bias against ethnic
Albanians.[403] In
addition, the ICTY has participated in extensive training programs for Serbian
war crimes prosecutors and judges both in Serbia and in The Hague.[404]
The ICTY inspired a number of innovations including the establishment of a
victim and witness support unit, the authorization of the use of video links,
and the preparation of audio recordings of trial proceedings.[405]
The tribunal has also had a positive impact on domestic courts by serving as a
model of fair process.[406]

The court still suffers from an inability or unwillingness
to prosecute high-level leaders. In addition, a string of reversals by the
predominantly Milosevic-appointed Supreme Court demoralized victims who
participated in proceedings. Despite these flaws, the court is a critical forum
ensuring accountability for the crimes committed during the Balkans conflicts.

3. Croatia

In the years following the Security Council statements
supporting transfer of cases from the ICTY to national courts, Croatia also made changes to its legal system. In October 2003 the Croatian parliament
passed legislation providing for the establishment of new specialized chambers
for war crimes in four county courts in Croatia (Osijek, Split, Zagreb, and Rijeka).[407]
Croatian courts hear about 30 cases a year relating to crimes committed during
the 1991-95 war in Croatia.[408] Croatia also adopted a Law on Witness Protection in October 2003 and created a Department
for Support to Witnesses and Participants in War Crimes Proceedings within the
Ministry of Justice two years later. These laws, as well as the act incorporating
the International Criminal Court statute into domestic law, include witness
protection measures similar to those used by the ICTY such as use of
pseudonyms, witness relocation, and testifying with image and voice distortion.
In 2004 Croatia amended its penal code to conform more closely to the ICTY
statute by providing for liability based on command responsibility.

In 2005, citing these developments, ICTY’s referral
bench ordered its first case to be transferred to one of the specialized courts
in Croatia.[409] Since
then, ethnic bias in court proceedings has limited the effectiveness of these
proceedings, and the practical effect of the changes to the law is unclear.[410]
However, legal reform is a first step towards improved national enforcement
mechanisms.

4. Rwanda

The Rwandan justice system, feeble and poorly staffed before
the genocide, was further crippled by wartime losses. In the aftermath of the
conflict, the justice system faced the daunting task of prosecuting hundreds of
thousands of participants in the genocide. Over the following years, with
substantial assistance from the international community, the staff and
infrastructure of the national system was rebuilt. Laws were adopted to
increase the independence of the judiciary, raise the standards for hiring
judges, and improve efficiency in the handling of cases.[411]
The code of criminal procedure was changed in 2004 to grant all persons the
right to have counsel at all stages of proceedings, including interrogations.
The new code also grants judges habeas corpus powers to compel police and
prosecutors to present before them detained persons who might have been
illegally held, and authorizes them to punish those state agents who have detained
persons illegally.[412]

Significant legal reform was also undertaken by Rwanda in
2007 to facilitate the transfer of cases from the ICTR to its national courts.
Because the tribunal could not transfer cases to jurisdictions with the death
penalty, Rwanda abolished the death penalty. As a result, 1,365 persons had
their sentences commuted to life in prison.[413] Also
as part of its efforts to get ICTR cases referred to Rwanda, the parliament
adopted a Transfer Law that included a number of procedures to strengthen the
rights of the accused, constructed a new prison that meets international
standards, and developed witness protection and assistance programs.[414]

Despite these reforms, significant concerns remain about the
ability of the defendants to obtain a fair trial in Rwanda.[415]
So far, the ICTR has not allowed any cases to be transferred to Rwandan
national courts, citing, in part, difficulties in obtaining and securing
witnesses for the defense.[416] Following
a decision by the Appeals Chamber denying transfer to Rwanda in part because of Rwanda’s penalty structure,[417] the
Rwandan parliament passed a law removing the possibility of a life sentence in
solitary confinement for all cases transferred from the ICTR or extradited from
other countries.[418]
Rwandan officials have also indicated an intent to make further reforms to
satisfy the concerns of the judges about defendants’ rights at trial, in
order to obtain cases from the ICTR under the tribunal’s rules.[419]
Thus, the tribunal has acted as a catalyst for improving laws in Rwanda that
has resulted in improved domestic mechanisms for accountability.

B. International Criminal Court

Unlike the ad hoc tribunals, the ICC only has jurisdiction
over cases when national jurisdictions are unwilling or unable genuinely to
carry out the investigation or prosecution. Because national courts have
priority, states have the opportunity to bring cases that they might not
otherwise pursue. In each of the situations that the ICC is investigating, at
least nominal efforts have been made to improve domestic justice mechanisms for
serious international crimes as a result of ICC involvement.

1. Uganda

The ICC’s involvement in Uganda sparked an increased
focus on prosecution of war crimes and crimes against humanity domestically. As
mentioned in Chapter III.D, before the ICC’s involvement, the Ugandan
Parliament had passed a law providing a blanket amnesty to rebels who
surrendered to the government. However, during the peace talks between the
government and the Lord’s Resistance Army which began in July 2006,
interest in national prosecutions gained momentum because they were seen as an
attractive alternative to ICC prosecutions of LRA leaders. The agreement signed
between the LRA and the Ugandan government in February 2008 ultimately provided
for a special division of Uganda’s High Court to prosecute those who
planned or carried out war crimes or other widespread, systematic, or serious attacks
on civilians.[420] The
agreement also included measures to establish a special investigative unit
headed by Uganda’s director of public prosecutions and a registry with
authority to facilitate protection of victims and witnesses.[421]
Although the final peace accord was never signed by LRA leader Joseph Kony, the
conclusion of the accountability agreements reflected increased attention to
prosecutions for serious crimes at the national level and creates the
possibility of LRA prosecutions beyond ICC suspects. Though legislation to establish
the war crimes division of the High Court and amend Uganda’s law to allow
prosecution of international crimes is still pending, judges and a registrar
have been appointed.[422]

2. Democratic Republic of Congo

In 2004, the same year Congo referred the situation in its
country to the ICC for investigation and prosecution, the military courts
launched their own prosecutions for war crimes and crimes against humanity
relying on definitions of crimes contained in the Rome Statute.[423]
In April 2006 a military court in Mbandaka (in northwest DRC) found seven army
officers guilty of mass rape of more than 100 women at Songo Myobo in 2003, the
first time rape was tried as a crime against humanity in Congo. In August 2006
a militia leader was sentenced to 20 years’ imprisonment for war crimes
committed in Ituri.[424] A
military court in Katanga convicted Gedeon Kyungu Mutanga and others of crimes
against humanity between 2004 and 2006, the largest trial of this kind in Congo’s history.[425]
Although only a handful of trials have been held so far against mainly
low-ranking soldiers (and there have been fair trial concerns with those), in
each of these cases the court has applied definitions of crimes in the Rome
Statute.[426] These
cases represent small but significant steps forward in addressing the longstanding
culture of impunity in the DRC.

The ICC’s work in Congo has also helped raise awareness
of what acts constitute war crimes. As in Bosnia, the ICC’s investigation
in Congo sparked radio broadcasts by military leaders in 2004 defining
international crimes for the soldiers. In addition, the arrest of rebel
commander Thomas Lubanga on charges of recruitment and use of child soldiers in
March 2006 dramatically increased awareness among leaders of armed groups and
the general public that using child soldiers was unlawful.[427]

3. Sudan

The government of Sudan’s refusal to cooperate with
the ICC has been made in part on the basis that it has the capacity to try
cases in national courts and, therefore, the cases are inadmissible. To bolster
its claim, the government has periodically announced measures ostensibly
designed to improve domestic accountability. On June 7, 2005, one day after the
ICC prosecutor announced that he was opening investigations into the events in
Darfur, the Sudanese authorities established the Special Criminal Court on the
Events in Darfur to demonstrate the government’s ability and willingness
to handle prosecutions domestically. When establishing the court, a government
official stated that it was “considered a substitute to the International
Criminal Court.”[428] A
Ministry of Justice statement challenging the ICC’s jurisdiction made
explicit reference to the provision of the Rome Statute, article 17, which
allows the court to determine that a case is inadmissible if national
authorities are prosecuting the case.[429] Later
that year, additional decrees broadened the court’s jurisdiction to
include crimes under “international humanitarian law” and
established three permanent seats for the court in Nyala, Fashir, and Geneina,
the state capitals respectively of South Darfur, North Darfur, and West Darfur.[430]
Although these courts have been ineffective, in one of the handful of cases
that they have tried, a defendant faced the charge of looting as defined in the
Rome Statute. Although the defendant was not convicted for this crime, it
marked the first time that the Rome Statute (which Sudan has signed but not
ratified) was used in proceedings in Sudan.[431]

Apart from the establishment of special courts, the Sudanese
government has taken additional steps to outwardly improve national
accountability mechanisms as a way of possibly avoiding ICC jurisdiction. On September 18, 2005, a Specialized Prosecution for Crimes against Humanity Office was
established in Khartoum by a decree from the Acting Minister of Justice.[432]
In the time since the ICC prosecutor announced that he was seeking his first
arrest warrants for Ahmed Haroun and Ali Kosheib, the government has
periodically indicated that it was investigating Kosheib for crimes in Darfur.[433]
Additional efforts have been undertaken to reform Sudan’s criminal code.
In November 2008 the government passed amendments to the code to include
international crimes such as crimes against humanity and war crimes, though no
one has been charged under these provisions. [434]
Though no real progress has been made towards ending impunity for atrocities in
Darfur and lack of political will remains an obstacle for genuine proceedings,
the institution of legal reforms is still a positive step.

4. Central African Republic

On October 25, 2005, the Central African Republic’s
former army chief of staff, Gen. Francois Bozize, launched a rebel offensive
against then-President Ange-Felix Patasse. Unable to rely on his army, which
had been weakened by several mutinies and military coups, Patasse obtained
support from forces of the Congolese rebel Jean-Pierre Bemba’s Congo
Liberation Movement and a mostly Chadian mercenary force. Both groups committed
widespread atrocities, including massacres and rapes, during 2002 and 2003. Fighting
continued sporadically from October 2002 to March 15, 2003, when Bozize finally
seized power.

On December 22, 2004, the CAR government referred the events
in 2002-03 to the Office of the Prosecutor after CAR’s Court of Appeal
recognized the inability of domestic courts to investigate and prosecute war
criminals effectively. Two-and-a-half years later the ICC prosecutor announced
that he would investigate crimes committed during the 2002-03 fighting and would
monitor more recent events to determine whether crimes committed in the north
as part of a counterinsurgency campaign would warrant investigation.

The possibility of ICC prosecution (an issue stressed by
victims’ associations calling for justice) increased pressure on the CAR
government to respond to abuses committed in the north as part of a conflict
that began following the May 2005 elections. Human Rights Watch’s
September 2007 report on violence in the CAR,[435]
which named suspects and emphasized ICC jurisdiction, generated a great deal of
publicity around the question of whether the ICC would investigate leaders of the
elite Presidential Guard (which is under the president’s control) and
made it more difficult for the government to turn a blind eye to crimes. Following
the publication of Human Rights Watch’s report, President Bozize admitted
that CAR forces had committed abuses and said that those responsible will be
held to account.[436] The
ICC prosecutor put direct pressure on the CAR authorities to follow up on
prosecution for the more recent crimes. On June 10, 2008, the ICC prosecutor
addressed a letter to President Bozize noting that “sustained attention
needed to be paid to the acts of violence committed in the north of the Central African Republic.”[437] In response
Bozize sought the United Nations’ assistance in suspending ICC
investigations, arguing in a letter to the UN secretary-general that the CAR justice
system is competent to investigate and prosecute more recent crimes itself.[438]

Though there has been little evidence of genuine will to
prosecute in CAR (by mid-2009 only individual low-ranking members of the CAR
security forces had been prosecuted and convicted of ordinary crimes such as
assault, battery and manslaughter), in September 2008 the CAR government
established an office for international humanitarian law within the army, which
is responsible for conveying the laws of war to its members.[439]
Abuses in the north diminished after international pressure caused the
government to withdraw much of the Presidential Guard from the area.[440]
The involvement of the ICC has at least served to increase awareness of crimes,
which may be the first step in preventing them.

5. Situations under analysis: Kenya and Colombia

Even in countries where the prosecutor is undertaking
preliminary analysis to determine whether to open an investigation, the looming
possibility of ICC involvement has been enough to spur national enforcement
efforts.

Kenya

Violence has been a regular feature of Kenyan elections
since the restoration of multiparty politics in 1991. Yet, as discussed in
Chapter VI.A, no one has been held to account for these crimes. The results of
investigations into political violence were routinely swept under the rug, with
the result that impunity became the order of the day.[441]
The explosion of an even greater level of violence following elections in late
2007 resulted in calls to break the cycle of impunity. This time, in the
context of Kenya’s status as a party to the ICC and as a result of greater
international involvement, the demands for justice appear more promising. The
Commission of Inquiry into Post-Election Violence (“Waki commission”), which was appointed by
the coalition government as part of the mediation process, recommended in its
October 2008 report the creation of a special tribunal with an international
component to try those most responsible for the attacks.[442]
The commission added teeth to its recommendation by handing a sealed envelope
containing a list of leading suspects for the crimes and supporting evidence to
the mediator, Kofi Annan, with the instruction that the envelope be passed to
the ICC prosecutor should efforts to set up the tribunal fail.[443]
In this way, the commission sought to ensure that the results of their inquiry
would not be ignored. The ICC prosecutor has also made statements indicating
that he is analyzing the post-election violence in Kenya to determine whether
crimes under his jurisdiction were committed.[444]

Only hours before the commission’s initial deadline
for names to be handed over to the ICC, the Kenyan prime minister and president
signed an agreement to create a special tribunal in December 2008.[445]
A truth commission had already been established in late 2008 to look into
crimes since independence in 1963,[446] and an
International Crimes Bill was fast-tracked through parliament in December 2008
in accordance with Waki commission recommendations.[447]
Since then, however, a draft statute establishing the special tribunal was
voted down in parliament, and although the government claims to be working to
ensure that justice is done, it appears to be doing no more than stalling on
this point.[448]
Although the ultimate fate of the special tribunal has not yet been determined
(and hence the envelope containing the list of leading suspects has not yet
been unsealed), the existence of the ICC and the threat of ICC prosecution have
changed the discussion about accountability in Kenya.

Colombia

Colombia has kept one eye on the ICC as it decides how to
handle human rights abuses committed by paramilitary death squads. Colombia ratified the Rome Statute on August 5, 2002, with a declaration that it would not
accept the ICC’s jurisdiction over war crimes until 2009. The possibility
of ICC involvement has had some influence on decisions made about national
accountability in the meantime.

For the last three decades, paramilitary groups allied with
powerful political, military, and economic elites have ravaged Colombia with almost complete impunity while purporting to fight left-wing guerillas.
Despite massacres, torture, enforced disappearances, and murders of thousands
of civilians, human rights defenders, and local leaders, the paramilitaries and
their accomplices were consistently able to avoid investigation, prosecution,
and punishment.[449]
Extradition requests in 2002 from the United States spurred paramilitary
leaders to negotiate a deal with the Colombian administration in the hopes of
avoiding lengthy prison terms in the United States for drug trafficking. The
negotiations resulted in Law 975 (commonly known as the “Justice and
Peace Law”) which was the country’s first transitional justice law.[450]
In exchange for their groups’ supposed demobilization, the law offered
paramilitary commanders responsible for horrific atrocities reduced sentences
of five to eight years (they could be reduced further to less than three years)
that were grossly disproportionate to their crimes. The law contained serious flaws,
but was improved after the Colombian Constitutional Court reviewed it in 2006,
citing international standards on truth and justice.[451]

The ICC prosecutor has from the start of the demobilization
and the negotiations over the Justice and Peace Law expressed an interest in
the process. He sent a letter to the Colombian government in March 2005
requesting information about the draft law then being considered.[452]
The prosecutor followed up by posing questions about the law’s
implementation and about the investigation of paramilitary accomplices in the
political system, noting that his office is “monitoring the open
proceedings against the paramilitary leaders, an issue that implicates members
of Congress.”[453] During
a visit to Colombia in 2007 he stated, “Information has come up that
implicates other people who are being investigated. These people could also
have greater responsibility for the crimes, and so we are interested in them.
We are watching how Colombia processes this type of case. We’re checking.”[454]
Again in 2008 the prosecutor sought information on how those most responsible
for crimes within the ICC’s jurisdiction will be brought to trial.[455]

At various times, the Colombian government has proposed
bills or initiatives that could let paramilitaries or their accomplices off the
hook for their crimes. The ICC prosecutor’s expressions of interest in
the Colombian proceedings have received extensive coverage in the Colombian
media, and may have been one reason why the Colombian government has not
followed through with those initiatives.

C. Universal Jurisdiction

Over the past two decades, several European states began to
pursue suspects abroad who had committed serious international crimes against
their citizens. These efforts to bring justice in domestic courts through
universal jurisdiction laws or “passive nationality” (where the
victim is a citizen of the country bringing charges) created profoundly
important “spillover effects” in national courts of states where
the crimes occurred: they sparked investigations and prosecutions in Latin America. The arrest of Augusto Pinochet in the United Kingdom and the resulting
litigation in Belgium, France, Spain, and Switzerland prompted an opening of
the domestic courts in Chile to victims who had previously been denied access
to effective remedies. In Buenos Aires, Argentina, a Spanish judicial order
contributed to the August 2003 reopening of trials of military officers
responsible for gross violations of human rights during Argentina’s “dirty war.” The Spanish judge had issued warrants for the extradition
of 48 former military officers and a civilian accused of torture and “disappearances”
in Argentina so that they could stand trial in Spain. These cases created a
renewed interest in domestic accountability and increased pressure on national
courts to handle these cases at home. In this way prosecutions by foreign
courts have helped jumpstart use of national courts to try leaders for abuses
committed in their own country.

1. Chile

On October 16, 1998, officers of the London Metropolitan
Police, acting at the request of Spanish magistrate Baltasar Garzon, arrested
former Chilean dictator Gen. Augusto Pinochet while he was recovering from back
surgery in a private London clinic. The arrest shocked Chile and gave rise to concerns that efforts to prosecute Pinochet would destabilize, if not
destroy, the country’s fragile democracy.

During Pinochet’s 17-year rule in Chile, more than 2,600 people were killed or “disappeared” by his security forces, more
than 28,000 were tortured, and hundreds of thousands were exiled or fled the
country in fear of their lives. Despite the regime’s crimes, Pinochet and
his colleagues had seemed untouchable by the law. Even following his return to
civilian life in March 1998 after a quarter-century as Chile’s supreme
military leader, Pinochet had never been prosecuted by Chilean courts for any offense:
his position as senator-for-life gave him constitutional immunity from arrest
or criminal process. In addition, in 1978 he had granted his government a
self-amnesty for the period of September 11, 1973, through March 10, 1978, when military repression and human rights violations were at their height.
Furthermore, he continued to have great political influence with former
military associates in parliament and with the judiciary, some of whose senior
members he had appointed.[456] His
arrest on charges of egregious human rights violations as a result of an
investigation conducted by a Spanish magistrate seemed inconceivable.

Ultimately, the “Pinochet affair” had important
and largely unforeseen consequences in Chile. The arrest made it obvious that Chile’s decision to evade human rights obligations under international law was
seriously out of step with world opinion. It also spread concern for the first
time across the political spectrum that the families of the dead and
“disappeared” were owed answers about the fate of their relatives from
those responsible, and that the success of Chile’s transition to
democracy depended on answers being provided. As Socialist Party leader Ricardo
Lagos expressed it, “The international community ... handed us a yellow
card.”[457] That
some politicians on the political right were willing to consider that human
rights violations were the result of government policy would not have been a
possibility prior to the arrest.[458]

At the same time, Pinochet’s arrest and the charges
against him were highly controversial. Some Chilean leaders argued that
“a giant bomb had been dropped on the [democratic] transition”[459]
and that if not overturned soon, the decision “will inevitably create a
climate of instability ... and could lead to a grave deterioration in the
national co-existence it cost us so much to construct.”[460]
However, the forebodings expressed by opponents of Pinochet’s prosecution
that “reopening old wounds” would destabilize Chile’s fragile democracy were shown to be greatly exaggerated. Those who claimed Pinochet’s
arrest would bring chaos and instability to Chile, upsetting Chile’s progress toward full democracy, were proved wrong as the predicted apocalypse never
occurred. Chileans adapted to the momentous developments with little overt
lawlessness.[461] Except
for moments of political tension and noisy street demonstrations when decisions
went against Pinochet, there were only isolated incidents of violence.[462]
Opinion polls conducted at explosive moments of the Pinochet crisis showed that
more than two-thirds of the respondents did not think that democracy was in
danger or that the arrest affected their lives; a solid majority wanted
Pinochet to face justice and most wanted him to face justice in Chile.[463]

The Chilean government’s opposition to the warrant was
based on the principle of territorial jurisdiction. As President Eduardo Frei
stated at the time, “All our efforts to get Senator Pinochet home have
had a sole objective: that it should be Chilean courts not those of another
country that apply the law.”[464]
Indeed, the law favors domestic courts over foreign ones for extraditable crimes
committed by an individual in their home country. However, under the principle
of aut dedere aut judicare (either extradite or prosecute), governments
that refuse to extradite persons wanted for human rights abuses are obliged to
try them themselves.

But, as already noted, little had been done nationally to
prosecute him. The Chilean government’s initial efforts to show Britain that Chile was seriously investigating Pinochet’s criminal responsibility in Chile were unsuccessful.[465] Yet
under the surface, the Pinochet affair wrought important changes: it helped
spur efforts in Chile to prosecute the atrocities committed while Pinochet was
in power. When Pinochet returned to Chile after the United Kingdom then-Home
Secretary Jack Straw decided to deny Spain’s request for extradition on
medical grounds in March 2000, he came back to a changed legal landscape.

In the first year following the arrest, three generals,
including a former member of the military junta, and at least 30 officers and
former officers of the army and air force were charged for grave human rights
crimes in Chile. The Supreme Court allowed prosecutions to proceed despite the
1978 amnesty law due to a new doctrine which in theory permitted the
prosecution of “disappearances.”[466] By the
time that Pinochet returned to Chile, he faced more than 60 domestic criminal
complaints lodged since January 1998 by relatives of victims of extrajudicial
executions, “disappearances,” and torture.[467]
Three months later, the Santiago Appeals Court voted to remove his immunity,
finding sufficient grounds for him to be prosecuted. The decision was confirmed
by a wide margin by the Supreme Court. With this decision, Pinochet’s
claim of immunity, which had seemed impenetrable, was in tatters. This decision
contributed to a more favorable climate for other human rights cases (though
some uncertainty remains because court rulings in Chile are not binding on
cases other than the one under review).[468] Pressure
to prosecute resulting from extradition requests has also resulted in the
reopening of previously closed cases.[469]
However, a bill promoted by the government to amend the criminal code so that
crimes against humanity are not subject to amnesties or statutes of limitation
remains deadlocked in Congress at this writing.[470]

At the time of Pinochet’s death in December 2006, he
was facing trial in three human rights cases and others were in the pipeline.
Despite litigation over his fitness to stand trial, judges placed him on
several occasions under house arrest and in October 2006 accused him personally
of torture. As of July 2008, 482 former military personnel and civilian
collaborators were facing charges for enforced disappearances, extrajudicial
executions, and torture; 256 had been convicted (of whom 83 had had their
conviction confirmed on appeal); and 38 were serving prison sentences.[471]

2. Argentina

For many years Argentina seemed to have closed the books on
the numerous systematic human rights violations committed under the military
juntas that ruled the country from 1976 to 1983. However, as in Chile, efforts
to bring to account human rights violators were revitalized, in part, by
efforts of victims and human rights groups to bring perpetrators to justice in various
European countries.

From 1976 to 1983 Argentina was governed by a military
dictatorship that committed horrendous human right violations. After the armed
forces took power in a March 1976 coup, a “dirty war” was conducted
in which the military and police abducted at least 14,000 suspected leftists,
tortured them in secret detention centers, executed them, and disposed of their
bodies in secrecy (many victims were dropped from planes into the ocean). After
democracy was reestablished in 1983, prosecutors began trying members of the
military juntas. Ten senior military officers were convicted in Buenos Aires of crimes such as murder and torture. However, the trials and sentencing of
junta leaders and military and police officers led to a backlash among military
officers. Then-President Raul Alfonsin rushed two laws through Congress on December 24, 1986, and June 5, 1987, hoping to appease military objections to the
prosecutions.[472]

The full-stop law of 1986 (Law No. 23,492) set a 60-day
deadline for the initiation of new prosecutions. When that law failed to thwart
the prosecution of large numbers of defendants, the 1987 due obedience law (Law
No. 23,521) was passed, granting automatic immunity from prosecution to all
members of the military except top commanders.[473]
The Supreme Court’s ruling later that year that the due obedience law was
constitutional effectively put a stop to the prosecution of “dirty war”
crimes for years.[474] The
only crime that could be prosecuted was baby-snatching—the theft of
babies born to mothers held in secret detention and subsequently killed was
considered too abhorrent to absolve.[475] Those
who had been convicted in trials prior to passage of the immunity laws were
granted pardons in 1989 and 1990 by then-President Carlos Menem, ostensibly as
a reconciliation measure.[476] In the
early 1990s any possibility of successful prosecution of the thousands of human
rights crimes facing the courts seemed to have been foreclosed.

During the 1990s, human rights groups campaigned and
litigated to ensure that judicial investigations into human rights crimes
continued even though prosecution was barred. “Truth trials” to
establish the truth about the fate of the missing were held, but the full-stop
and due obedience laws continued to protect perpetrators from prosecution.[477]
As one of the complainants’ lawyers explained, “When the Truth
Trials began, we had no possibility of demanding trial and punishment of the
guilty, because Pinochet was not then detained, the [UK] House of Lords had not
yet ruled, Baltazar [sic] Garzon had not yet asked for the extradition of the
Argentine military officers. All of this created a universal jurisdiction
consciousness, an understanding that crimes against humanity can be prosecuted
anywhere in the world.”[478]

Following the Pinochet case, foreign efforts at prosecution
of Argentines for crimes committed during military rule picked up speed. Cases
in Italy, France, Spain, Sweden, and Germany were brought for crimes committed
in Argentina against citizens of those countries.[479]
On December 30, 1999, Spanish judge Baltasar Garzon issued an international
arrest warrant for 48 former military officers.[480]
A former Argentine military official, Ricardo Miguel Cavallo, was arrested in Mexico in August 2000 and extradited to Spain, the first time a suspect would be sent to a third
country to face charges for human rights abuses committed in their home
country.[481] These
cases helped increase pressure to repeal the amnesty laws in Argentina.

Initially the government refused to cooperate with
investigations being conducted abroad, on grounds of national sovereignty, and
even issued orders to block the investigations.[482]
Although one Argentine judge ordered arrests of suspects on the basis of another
Garzon request, they were subsequently released on the basis of decisions made
in the executive branch. Argentina’s ministers of foreign relations and
defense rejected extradition requests asserting that only Argentina has the right to try those responsible for crimes committed on its territory.[483]

However the principle of “extradite or prosecute”
created additional pressure to pursue these cases in domestic courts. Thus, the
government under then-President Fernando de la Rua undertook to submit the
extradition cases to national courts for possible prosecution in Argentina.[484]
The defense minister who rejected a 2001 request by Spanish judge Garzon for 18
Argentines referred the cases to the attorney general for prosecution.[485]

The watershed moment came with a landmark decision by Argentine
Federal Judge Gabriel Cavallo in 2001 declaring the amnesty laws
unconstitutional and without legal effect. In his decision, he drew on facts
established in Garzon’s investigation in Spain as well as on US
extradition proceedings. He cited the Pinochet case and other international
decisions to show that these cases were of international concern and that Argentina had an international legal obligation to prosecute.[486]
When asked why Argentine judges waited so long to overturn the amnesty laws,
Cavallo stated,

External and internal pressure was growing and public
opinion was changing. Then foreign judges began making concrete detention
requests, and those of us working in the area began to think “This won’t
be considered a serious country until we solve this problem.” Foreign
governments didn’t want to be bothered with having these cases in their
courts, and they put pressure on the Argentine government to not stand in the
way of the local trials so that foreign judges would not end up doing these
investigations. That changed the pressures on judges.[487]

In affirming this decision, the Federal Court of Buenos
Aires found, “To do justice is not an option, but an obligation.”[488]
In 2005 the Supreme Court affirmed once and for all the unconstitutionality of
the immunity laws, which by then had been annulled by the Argentine Congress.[489]

Since 2005 several federal judges have struck down the
pardons that President Menem granted in 1989 and 1990 to former officials
convicted of or facing human rights violations.[490]
As of late 2008, nearly 400 people were facing charges for crimes committed
during the last military dictatorship, the majority of whom were in pretrial
detention.[491] Those
detained include former Navy Capt. Alfredo Astiz (“the angel of death”)
who was sentenced to life imprisonment in absentia by French and Italian courts
after his extradition was refused by Argentina, for the “disappearance”
of two French nuns and three Italian citizens.[492]

The other issue illustrated by the experience of Chile and
Argentina is that even decades after crimes are committed, the wounds do not
heal if the past is not confronted. Years after the military coup in Argentina, tens of thousands still take to the streets to demand justice for the crimes.[493]

VIII. Protection against Revisionism

If you do not deal with a dark past ..., effectively
look the beast in the eye, that beast is not going to lie down quietly; it is
going, as sure as anything, to come back and haunt you horrendously.[494]

—Archbishop Desmond Tutu

Another long-term benefit of accountability relates to the
importance of confronting the past. Trials make a particular contribution to
establishing a record of past events. The evidentiary rules used at judicial
proceedings, and the requirement that judgments be based on proven facts, help
confer legitimacy on otherwise contestable facts and make it more difficult for
“societies to indulge their fantasies of denial.”[495]
Thus, one of the important benefits of trials is that they preserve a more
accurate record of the crimes than might otherwise be the case, though they are
not necessarily as comprehensive as a truth commission. This can help a community
more readily come to grips with its past by publicly acknowledging the victims
and by exposing (at least for the cases it covers) the truth about what
happened. It is, therefore, a crucial tool for combating denial and
revisionism. The Nuremburg trials, for example, have made it more difficult for
subsequent generations of Holocaust deniers to make their claim even decades
later. Evidence revealed in the trials became an insurmountable obstacle to
those seeking to disprove that the crimes of the Nazi regime took place.

The value of trials both for bringing forward evidence that
might otherwise not be disclosed and for refuting those who deny the existence
of crimes can be seen in aspects of the work of the International Criminal
Tribunal for the former Yugoslavia.

A. International
Criminal Tribunal for the former Yugoslavia

Over the course of its trials, the ICTY accumulated a
formidable wealth of documentary evidence and testimony that can serve as a
reference point and help prevent the manipulation of history to sow the seeds
of new conflicts.[496]
Without the work of the ICTY, state secrets may have remained secrets and
government efforts to misinform the public may not have been so effectively
exposed. A recent study also shows that the work of the ICTY may have some small
effect on attitudes toward the Balkans war crimes in Serbia, though coming to
terms with the crimes will be a long-term process.

1. Milosevic trial

The trial of Slobodan Milosevic was the first ICTY case in
which evidence was introduced relating to the three main conflicts in the
breakup of Yugoslavia: Bosnia, Croatia, and Kosovo. Though Milosevic’s
death kept it from ending in a verdict, Human Rights Watch found that the
lengthy trial consolidated a great deal of information about the conflicts in
the region that will help future generations understand how the wars came to
pass.[497]
Because much of Belgrade’s involvement had been kept secret, its exposure
during the Milosevic trial shed important new light on the events. The fact
that Milosevic had the opportunity to test the prosecutor’s evidence in
cross-examination enhances its value as a historical record.

Although it was widely assumed that Serbia supported the Serb combatants in the conflicts in Bosnia and Croatia, the full extent of the
support and the mechanisms by which it was accomplished did not become public
until the Milosevic trial.[498]
Milosevic himself discussed the secrecy involved, in a statement to a Belgrade investigating judge who was looking into allegations of misappropriation of
customs funds in 2001. In his statement, admitted as an exhibit at trial,
Milosevic admitted that the money was used to help rebel Serbs in Bosnia and
Croatia:

As regards the resources spent for weapons, ammunition and
other needs of the Army of Republika Srpska [in Bosnia and Herzegovina] and the
Republic of Serbian Krajina [in Croatia], these expenditures constituted a
state secret and because of state interests could not be indicated in the Law
on the Budget, which is a public document. The same applies to the expenditures
incurred by providing equipment, from a needle to an anchor, for the security
forces and special anti-terrorist forces in particular, from light weapons and
equipment to helicopters and other weapons which still remain where they are
today, and this was not made public because it was a state secret, as was
everything else that was provided for the Army of Republika Srpska. In my
opinion, these matters should still constitute a state secret.[499]

The Milosevic trial opened the door on these state secrets.
Evidence introduced at trial showed exactly how those in Belgrade and the
Federal Republic of Yugoslavia (FRY) financed the war, how they provided
weapons and material support to Bosnian and Croatian Serbs, and how the
administrative and personnel structures were set up to support the Bosnian Serb
and Croatian Serb forces.

Court proceedings that required disclosure of material by
the Serbian government revealed previously unknown information about how the
war was managed from Serbia. For example, Supreme Defense Council minutes
acknowledging the need to hide from the public the massive assistance to the
wartime Republika Srpska and the Republic of Serbian Krajina were made public
for the first time as part of the Milosevic trial.[500]
The Supreme Defense Council was comprised of the presidents of Serbia, Montenegro, and the Federal Republic of Yugoslavia. It met from 1992 to 2000 to make
decisions about Yugoslavia’s defense and security. The meetings’
minutes and shorthand notes were introduced at trial as a result of the
prosecutor’s pursuit of court orders requiring Serbia and Montenegro to comply with outstanding requests for documents under a court rule that allows
the parties to obtain documents from states.[501]
Although not all of the financing was done in secret,[502]
the Milosevic trial was important in that evidence introduced at trial shed new
light on both the financial structures set up to facilitate support for the new
entities and on the sources of the money used to fund the conflicts.

Other new material was revealed for the first time in the
Milosevic trial, including the “Scorpion video” that showed members
of the notorious “Scorpion” unit, believed to have been acting
under the aegis of the Serbian police, executing men and boys from Srebrenica
at Trnovo. The video had an enormous impact on Serbia. As part of trial
coverage, it was aired as news on a number of Serbian national television
stations and reached a broad audience, sending shockwaves through society. The
airing of the video engendered a great deal of national discussion about
atrocities that many people in Serbia had previously denied.

In addition, the trial also examined Serbian government
officials’ attempts to hide evidence of massacres. For example, witnesses
described for the first time how the Minister of the Interior Vlajko
Stojiljkovic, ordered a cover-up of the discovery of the decomposing remains of
86 Kosovo Albanians in a refrigerated truck driven into the Danube river in
1999.[503]

2. Srebrenica

In addition to bringing forward new historical information
about the conflicts, evidence at the ICTY trials helped undermine the Bosnian
Serb government’s denial of crimes. Following the massacre at Srebrenica
in July 1995, the Bosnian Serb government attempted to obscure the extent of
the carnage both through a report and through its public statements. Shortly
after the attacks, Ratko Mladic insisted that Bosnian Serb soldiers treated the
people of Srebrenica “correctly” but said a considerable number of
soldiers and police had put on plainclothes and “merged with civilians.”[504]
In September 2005 the government issued a report contending that exhausted
Muslim men under extreme pressure imagined a massacre or invented stories to
attract the attention of the international community. It called a Serbian
soldier who admitted taking part in the killings “mentally disturbed.”[505]

In response to photos taken by the US government showing
bodies lying in the vicinity of a grave on the day of the shooting and then the
grave freshly covered with earth, the Bosnian Serb army spokesperson said that the
grave contained the bodies of soldiers killed during battle. Exhumations
conducted by the ICTY’s prosecutor’s office, however, starkly
exposed the spokesperson’s lie.

Evidence from the exhumations introduced in court created a
record of what happened in Srebrenica with a degree of certainty that would
have otherwise been absent.[506] For
example, extensive forensic evidence introduced during the trial of Gen.
Radislav Krstic showed that over 400 ligatures and blindfolds were found in
exhumations of 13 different gravesites. The majority of victims for whom a
cause of death could be determined were killed by gunshot wounds; some of the
victims were severely handicapped and, therefore, unlikely to have been
combatants.[507] The
voluminous forensic evidence corroborated witness testimony from survivors and
a participant in the massacre. Based on the evidence, the court concluded that
thousands of Bosnian Muslim men from Srebrenica were killed in careful and
methodical mass executions.[508] Rather
than being killed in battle as the government had claimed, the court found that
most of the executions followed a well-established pattern whereby the men, who
were unarmed and often blindfolded with their wrists tied behind their backs,
were lined up and shot at execution fields in isolated locations.[509]

The confessions or guilty pleas of war criminals also help
to establish the occurrence of events. Drazan Erdemovic’s confession to
killing over 70 Muslim civilians outside of Srebrenica helped verify what
happened there.[510]

An examination of the ICTY’s impact in Serbia by Diane Orentlicher reveals signs that its work may be having a modest positive
effect in changing public perception of the conflict after years of propaganda.
For a long time, nationalist figures claimed that the number of deaths in
Srebrenica was much lower than other estimates and blamed many of the killings
on intra-Muslim violence. In Serbian society, the mere existence of a crime in
Srebrenica was denied by a third of the Serbian population and the fact that it
constituted genocide was rejected by an overwhelming majority.[511]
Although surveys show that most Serb citizens are not persuaded that Serbs
committed a majority of war crimes during the conflict and believe that the
ICTY is biased against Serbs because of the preponderance of Serb defendants,
those numbers may slowly be changing.[512]
Orentlicher’s study concludes that while the level of disbelief about the
massacre in Srebrenica is high, between 2004 and 2006 there was a modest
increase in Serbian respondents’ belief in the truth of reports of
atrocities committed by Serbs and more acknowledgment of the core facts
underlying the Srebrenica genocide.[513] She
found that many “believe that the evidence adduced in The Hague has
significantly ‘shrunk the public space’ in which political leaders
can credibly deny the truth about notorious atrocities.”[514]
Although the process of accepting what happened is a long-term one (as
demonstrated in Germany after the Second World War), the trials may assist with
that process.

The investigations and prosecutions at the ICTY mark the
first time in the long history of the Balkans that impartial investigations
have been conducted into the conflicts. Evidence brought out at trials lays a
foundation for a better understanding of the conflict in the region which may
foster enhanced stability in years to come.

IX. Deterrence

One of the reasons for pursuing justice, and a reason cited
for the establishment of the International Criminal Court, is the belief that
ending impunity for the most serious crimes will lead to their prevention.[515]
Critics have pointed to commission of crimes in countries where an
international court already had jurisdiction as evidence that these courts do
not have the hoped-for impact (though in the oft-cited examples of Srebrenica
and Kosovo, at the time of those events few suspects then being pursued by the
International Criminal Tribunal for the former Yugoslavia had been apprehended,
so the court’s reach and impact was not yet evident).[516]
Extrapolating from national experience, we have seen that the higher the probability
of apprehension and punishment, the greater the likely deterrent effect on some
premeditated crimes. The deterrent effect here will likely hinge on the degree
to which punishment for those crimes becomes more certain, and in the
international arena that is subject to a greater number of variables. It will
depend to a large extent on the willingness of states parties to the ICC to
support the court and to press for cooperation, in particular with respect to
arrest warrants.

It likely will be years before the court has established a
track record and developed its standing as an effective institution willing to
act when national authorities are unwilling or unable to do so. Nonetheless, without
overstating the significance, Human Rights Watch has found some anecdotal
evidence that indicates that there may be some short-term deterrence benefits
arising from the threat of prosecution, even at the current development of
international criminal law.

A. Afghanistan

A perceived threat of prosecution has been seen to have some
short-term effect on at least one warlord in Afghanistan. In May 2002 the Christian
Science Monitor reported that a key warlord in northern Afghanistan, Gen. Abdul Rashid Dostum, forced more than 90 commanders to listen to a
reading of a 52-page Human Rights Watch report alleging atrocities committed by
his forces after the fall of the Taliban.[517] The
report, entitled “Paying for the Taliban’s Crimes,” described
widespread abuses including killings, sexual violence, beatings, and extortion
committed against Pashtuns, targeted because their ethnic group was closely
associated with the Taliban regime. The report called for Afghan commanders and
combatants responsible for war crimes to be held to account.[518]

During the meeting, the
warlord warned his men, “You must be careful in the future. These
[investigators] are very dangerous men. They can take you to an international
court of justice if they can prove your actions.” He also said, “I
am dying of these accusations from the international community ... . If any one
of my commanders commits these kind of acts, I will kill him tomorrow.”[519] The previous day, the general signed an agreement
with a rival group to remove heavy weaponry from the city of Mazar-e Sharif and
to create a combined 600-member multi-ethnic force to police the city to
discourage abuse of minority ethnic groups. A UN official suggested that the
Human Rights Watch report was provided to both forces as “incentive”
for the deal.[520]

Given Dostum’s evident sensitivity
to the threat of prosecution, the failure to follow through with him and others
on issues of accountability (as discussed in Chapter IV.A) was also a missed
opportunity to turn short-term effects into something more lasting.

B. Côte d’Ivoire

On November 16, 2004, the Côte d’Ivoire
government-controlled National Radio and Television aired messages that
replaced earlier appeals to ethnic hatred with ones of restraint, a day after
the UN special advisor on the prevention of genocide warned that the situation
could be referred to the International Criminal Court. After an arms embargo
was imposed by the UN Security Council in response to the government’s
violation of a ceasefire agreement, anti-French rioting and ethnic clashes
occurred. With thousands of Ivoirians and foreigners fleeing the country, the special
advisor stated that xenophobic hate speech could exacerbate already widespread
human rights violations. In particular, the special advisor warned that “the
Ivoirian authorities have an obligation to end impunity and to curb public
expressions of racial or religious hatred especially those aimed at inciting
violence” and noted that Côte d’Ivoire had lodged a
declaration with the ICC registrar accepting the exercise of the court’s jurisdiction.[521]
The pro-government media’s sudden change of message was a factor in
allowing the situation to grow quieter quickly.[522]

C. Democratic Republic of Congo

On March 17, 2006, the Democratic Republic of Congo
transferred Thomas Lubanga Dyilo to The Hague pursuant to an ICC arrest warrant
on charges of enlisting and conscripting children as soldiers and using them to
participate actively in conflict in Ituri. That day Human Rights Watch
researchers had a meeting with a Congolese army colonel to discuss crimes
committed by his forces against the Mai Mai, a local militia. As the discussion
turned to war crimes, the colonel sat up and said, “I don’t want to
be like Lubanga! I don’t want to be transferred to The Hague!”[523]
Human Rights Watch researchers have heard similar sentiments expressed by
militia leaders on other occasions. In a September 2006 discussion with a
militia leader in Ituri who was engaged at the time in peace discussions with
the Congolese government, the commander asked Human Rights Watch for further
information about what constituted war crimes, having heard a broadcast from The Hague on proceedings against Lubanga a few days earlier. When the elements of the crimes
were explained to him, he asked, “So could I also be transferred to [T]he
Hague if I did those things?” When informed that if he had done such
things that was a possibility, he put his head in his hands and repeatedly
said, “I had no idea. I had no idea.”[524]

The nongovernmental International Center for Transitional
Justice, and children’s rights advocates in the DRC, have also found that
“Lubanga’s arrest had an enormous educational impact, making clear
what was not previously understood: that recruiting, enlisting, and using
children to fight is a war crime.”[525] Although
the repercussions are not all positive (awareness has negatively affected
demobilization since armed groups do not want to be implicated in crimes),
Lubanga’s arrest has dramatically increased awareness among Congo
warlords and militia leaders that the use of children as participants in
conflict is unlawful.[526] In the
long run, the awareness that recruiting children to be soldiers is a criminal
act that may result in prosecution may help discourage use of child soldiers.[527]

D. Central African Republic

On May 22, 2007, the ICC prosecutor announced the opening of
an investigation into the CAR. The CAR government had referred the events of 2002-03
to the Office of the Prosecutor on December 22, 2004. Although the prosecutor
has focused on crimes mainly committed during that time, because the CAR is a
party to the Rome Statute and is under ICC investigation, officials and rebels are
concerned that the prosecutor will also turn his attention to crimes committed
as part of the 2007 counterinsurgency campaign. An active human rights
community in the CAR representing the victims and pushing for accountability
has increased civil society’s awareness of the ICC and has helped make it
a part of the debate surrounding more recent crimes.[528]

Human Rights Watch documented hundreds of unlawful killings
and burning of villages committed as part of a counterinsurgency campaign in
northern CAR by government troops and members of the Presidential Guard in a
September 2007 report. Human Rights Watch also documented human rights abuses
and violations of laws of war committed by rebel groups. In meetings with rebel
leaders that occurred immediately following Congolese rebel leader Thomas
Lubanga’s transfer to The Hague (see above), rebel commanders told Human
Rights Watch researchers that they “did not want to end up before the
ICC.” Before learning of the ICC prosecution of Lubanga on charges of
enlisting and conscripting child soldiers, rebel commanders readily admitted that
there were many children in their ranks, including some as young as 12, and
that many were armed and participated in combat. Upon learning that the use of
children as combatants is a serious violation of international humanitarian
law, one rebel commander spent two days explaining to Human Rights Watch
researchers that he had not known using child soldiers was a crime, that it was
“a misunderstanding,” and that he was not a criminal. He
immediately offered to demobilize the child soldiers as long as their security
could be guaranteed, and asked Human Rights Watch to contact United Nations
Children's Fund (UNICEF) for assistance with the demobilization. The children
were in fact demobilized.[529]

Acknowledgments

This report was researched and written by Sara Darehshori,
senior counsel in the International Justice Program of Human Rights Watch. The
report leans heavily on past reports by numerous Human Rights Watch researchers
across the organization and over many years. Richard Dicker, director in the international
Justice Program, provided research guidance and overall editorial review of the
report. Steve Crawshaw, UN advocacy director; Joe Saunders, deputy program director;
and Ken Roth, executive director, also provided important guidance and substantive
comments for this project.

In addition, several current and former staff members
reviewed, edited, and in some cases assisted in drafting sections on their
countries of expertise. They include Anneke Van Woudenberg, Corinne Dufka, and Leslie Lefkow, senior researchers in the Africa Division; Leslie Haskell,
Maria Burnett, Ben Rawlence, Lisa Rimli, and Neela Ghoshal, researchers in the
Africa Division; Maria McFarland, senior researcher in the Americas Division; Rachel Reid, researcher in the Asia Division; Ben Ward, associate director of the Europe and
Central Asia Division; Peter Bouckaert, director of the Emergencies Program; Jose Miguel Vivanco, director of the Americas Division; Param-Preet Singh, counsel in the
International Justice Program; and former Human Rights Watch staff members Sam
Zia Zarifi and Alex Vines. James Ross, legal and policy director, provided legal
review, and Ian Gorvin, senior program officer in the Program Office, provided program
review. Mia Psorn, associate for the International Justice Program, provided
production assistance, and Grace Choi, Anna Lopriore, and Fitzroy Hepkins
prepared the report for publication.

[1]One
example of how victims’ expectations have changed in this evolving
context is that Bangladesh is pressing ahead with plans to try people accused
of war crimes during its bloody 1971 liberation struggle from Pakistan. Trying
war criminals was a key pledge in the December 2008 elections.
“Bangladesh to set up war crimes tribunal,” Agence France-Presse,
January 27, 2009,
http://southasia.oneworld.net/todaysheadlines/bangladesh-to-set-up-war-crimes-tribunal
(accessed June 25, 2009). See also Human Rights Watch, Ignoring Executions
and Torture: Impunity for Bangladesh’s Security Forces, 1-56432-483-4,
May 2009, http://www.hrw.org/node/83149.

[15]On
December 12, 2008, the Pretoria High Court struck down amendments to South
Africa’s Prosecution Policy that provided for an effective rerun of the
Truth and Reconciliation Commission’s amnesty process under the guise of
prosecutorial discretion. See Nkadimeng & Others v. The National
Director of Public Prosecutions & Others (TPD Case No. 32709/07).

[18]United
Kingdom House of Lords, Regina v. Bartle and the Commissioner of Police for
the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another
and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet
(On Appeal from a Divisional Court of the Queen's Bench Division),March
24, 1999 (citing Arthur Watts, “The Legal Position in International Law
of Heads of States, Heads of Government and Foreign Ministers,” Recueil
des cours de l’Academie de droit international de La Haye, 1994, vol.
247, pp. 82-84).

[19]See UN
Commission on Human Rights, “Impunity,” Resolution 2004/72,
E/CN.4/RES/2004/72 (“Reaffirming the duty of all States to put an
end to impunity and to prosecute, in accordance with their obligations under
international law, those responsible for all violations of human rights and
international humanitarian law that constitute crimes … Convinced that
impunity for violations of human rights and international humanitarian law that
constitute crimes encourages such violations and is a fundamental obstacle to
the observance and full implementation of human rights and international
humanitarian law … .”). See also Principles of International
Cooperation in the Detection, Arrest, Extradition and Punishment of Persons
Guilty of War Crimes and Crimes against Humanity, adopted December 3, 1973,
G.A. Res. 3074, 28 UN GAOR Supp. (No.30) at 78, U.N. Doc.
A/9030/(1973)(“War crimes and crimes against humanity, wherever they are
committed, shall be subject to investigation and the persons against whom there
is evidence that they have committed such crimes shall be subject to tracing,
arrest, trial and, if found guilty, to punishment.”).

[21]The
obligation to “extradite or prosecute” (aut dedere aut judicare),
also referred to as universal jurisdiction, can be found in approximately 70
international criminal law conventions. Michael J. Kelly, “Cheating
Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign
Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law
& Refusal to Extradite Based on the Death Penalty,” Arizona
Journal of International & Comparative Law, vol. 20 (2003), p. 497.

[22]The
Convention on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) states, “Persons committing genocide or any of the other acts
enumerated in article III shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals ... . The
Contracting Parties undertake to enact, in accordance with their respective
Constitutions, the necessary legislation to give effect to the provisions of
the present Convention, and, in particular, to provide effective penalties for
persons guilty of genocide or any of the other acts enumerated in article
III.” Genocide Convention, adopted by Resolution 260(III)A of the United
Nations General Assembly, December 9, 1948, G.A. Res. 260 (III) A, entered into
force January 12, 1951, arts. 4-5.

[24]Article 146
of the Geneva Convention Relative to the Protection of Civilian Persons in
Times of War (Geneva IV) requires that “[t]he High Contracting Parties
undertake to enact any legislation necessary to provide effective penal
sanctions for persons committing, or ordering to be committed, any of the grave
breaches of the present Convention defined in the following Article.”
Geneva IV, adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October
21, 1950, art. 146.

[36]
ECHR, Aksoy v. Turkey, Judgment of 18 December 1996, No.
100/1995/606/694, para. 98. See also UN Commission on Human Rights, Independent
Study on best practices, including recommendations, to assist States in
strengthening their domestic capacity to combat all aspects of impunity, Diane
Orentlicher, E/CN.4/2004/88, February 27, 2004,
http://www.unhchr.ch/pdf/chr60/88AV.pdf (accessed June 2, 2009), paras. 24-56.

[37]
See Human Rights Watch, Universal Jurisdiction in Europe: The State of the
Art, vol. 18, no. 5(D), June 2006, http://www.hrw.org/sites/default/files/reports/ij0606web.pdf,
pp. 2-3. However, there has also been some backtracking, with Belgium, Germany,
and Spain seeking to place more restrictions on the use of universal jurisdiction.

[38]See
Elizabeth G. Salmón, “Reflections on international humanitarian
law and transitional justice: lessons to be learnt from the Latin American
experience,” International Review of the Red Cross, vol. 88/862,
June 2006, pp. 332-333.

[39]Democratic Republic of Congo – Décret-loi N°03-001 du
15 avril 2003 portant amnistie pour faits de guerre, infractions politiques et
d'opinion,Journal Officiel de la République
Démocratique du Congo,Numéro Spécial, http://www.unhcr.org/
refworld/country,,NATLEGBOD,,COD,,47305aae2,0.html (accessed June 2009), art. 1
(“pending adoption of an amnesty law, a temporary amnesty for acts of war
and political offenses would apply for the period between 2 August 1998 and 4
April 2003, with the exception of war crimes, genocide and crimes against
humanity.”);Côte d’Ivoire − Ordinance
No. 2007-457 of 12 April 2007 enacting the Amnesty Law, Ordonnance N° 2007 457 du 12 Avril
2007 portant amnestie, http://www.cotedivoirepr.ci/
?action=show_page&id_page=562 (accessed June 2009), art. 3(b) (providing a
broad amnesty that explicitly omits crimes which under the Ivorian penal code
qualify as crimes and offenses against people’s rights, crimes and
offenses against persons, crimes and offenses against property other than those
listed in Articles 1 and 2: “infractions qualifiées par le code
pénal ivoirien de crimes et délits contre le droit des gens,
crimes et délits contre les personnes, crimes et délits contre
les biens autres que celles énumérées aux articles 1er et
2”); Croatia −Law on General Amnesty,
HRV-110, 1996,
http://www.unhcr.org/refworld/publisher,NATLEGBOD,,HRV,3ae6b4de2c,0.html
(accessed June 2999), art. 3, and see also UN Human Rights Committee,
“Consideration of Reports Submitted by States Parties under Article 40 of
the Covenant, CCPR/CO/71/HRV, April 30, 2001,
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.71.HRV.En?Opendocument
(accessed June 2, 2009), para. 11; Ethiopia − Constitution of The
Federal Democratic Republic of Ethiopia, 1994, http://www.ethiopiafirst.com/Election2008/Constitution.pdf
(accessed June 2009), art. 28(1) (“Criminal liability of persons who
commit crimes against humanity … shall not be barred by statute of
limitation. Such offenses may not be commuted by amnesty or pardon of the
legislature or any other state organ.”); Venezuela − Constitution
of the Bolivarian Republic of Venezuela, 1999,
http://en.wikisource.org/wiki/Constitution_of_Venezuela (accessed June 2009),
art. 29 (“The State is obliged to investigate and legally punish offenses
against human rights committed by its authorities. Actions to punish the
offense of violating humanity rights, serious violations of human rights and
war crimes shall not be subject to statute of limitation. Human rights
violations and the offense of violating humanity rights shall be investigated
and adjudicated by the courts of ordinary competence. These offenses are
excluded from any benefit that might render the offenders immune from
punishment, including pardons and amnesty.”). See also Amnesty
International, “Special Court for Sierra Leone: denial of right to appeal
and prohibition of amnesties for crimes under international law,” October
31, 2003, http://www.amnestyusa.org/document.php?id=6463542D5D7BFD6980256DD000689A4C&lang=e
(accessed June 2, 2009).

[40]Prosecutor
v. Morris Kallon and Brima Bazzy Kamara, Special Court for Sierra Leone,
Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), Decision on Challenge to
Jurisdiction: Lomé Accord Amnesty, March 13, 2004, para. 67 (emphasis
added). Also, “the amnesty granted by Sierra Leone cannot cover crimes
under international law that are the subject of universal jurisdiction”
because “it stands to reason that a state cannot sweep such crimes into
oblivion and forgetfulness which other states have jurisdiction to prosecute by
reason of the fact that the obligation to protect human dignity is a peremptory
norm and has assumed the nature of obligation erga omnes.” Ibid.,
para. 71.

[44]For
example, the “Vienna Declaration and Programme of Action” reads,
“States should abrogate legislation leading to impunity for those
responsible for grave violations of human rights such as torture and prosecute
such violations, thereby providing a firm basis for the rule of law.”
World Conference on Human Rights, A/CONF.157/23, July 12, 1993, para. 60. In
October 2000, the UN secretary-general reported to the Security Council that
the United Nations has consistently maintained the position that “amnesty
cannot be granted in respect of international crimes, such as genocide, crimes
against humanity or other serious violations of international humanitarian
law.” Carsten Stahn, “Accommodating Individual Criminal
Responsibility and National Reconciliation: The UN Truth Commission for East
Timor,” American Journal of International Law, vol. 95 (2001), p. 955
(citing UN Security Council, Report of the Secretary-General on the
Establishment of a Special Court for Sierra Leone, S/2000/915, October 4, 2000,
para. 22). The Report of the Secretary-General on The Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies declares that
states should “[r]eject any endorsement of amnesty for genocide, war
crimes, or crimes against humanity, including those relating to ethnic, gender
and sexually based international crimes, [and] ensure that no such amnesty
previously granted is a bar to prosecution before any United Nations-created or
assisted court.” UN Security Council, The Rule of Law and Transitional
Justice in Conflict and Post-Conflict Societies: Report of the
Secretary-General, S/2004/616, August 23, 2004, p. 21. See alsoCHR,
Independent Study on Best Practices, Orentlicher, E/CN.4/2004/88, February 27,
2004, paras. 27-35.

[53]
Herbert Okun, “The Role of International Criminal Justice in Peace
Negotiations”(contribution to panel discussion “Future of
International Criminal Justice – Evolving Accountability from Nuremburg
to the International Criminal Court,” October 30, 2006), published in
Penn State International Law Review, vol. 25, issue 4 (2007), p. 788.

[58]Chief
Prosecutor for the Sierra Leone Special Court David Crane said that he had
unsealed the indictment when he learned that Taylor would be in Ghana and
susceptible to arrest, stating, “To ensure the legitimacy of these
negotiations, it is imperative that the attendees know they are dealing with an
indicted war criminal.” Felicity Barringer and Somini Sengupta,
“War Crimes Indictment of Liberian President is Disclosed,” New
York Times, June 5, 2003, http://www.nytimes.com/2003/06/05/
international/africa/05LIBE.html (accessed June 16, 2009).

[61]
See, for example, interview with Dapo Oyewole, Center for Democracy and
Development, indicating that the timing of the unsealing of the indictment
undermined some of the proceedings at the peace talks and that the humanitarian
situation in Nigeria needed to be addressed first. Jonathan Mann,
“Insight,” CNN TV, July 29, 2003, reproduced in writing by CNN
Transcripts, http://transcripts.cnn.com/TRANSCRIPTS/0307/29/i_ins.01.html
(accessed May 13, 2009). See also Cobb, “Diplomatic Dismay as Liberia
Rebels Poise for Final Push and Foreigners Flee,” allAfrica.com.

[62]
Liberia is also an example of how impunity can lead to more atrocities. In a
quick bid to end the first brutal Liberian civil war and in the face of massive
crimes committed against civilians, UN and West African leaders agreed to a
peace plan that dispensed with justice and rushed an election that installed
warlord Charles Taylor as president in 1997. Not surprisingly, within a short
time, the country was back at war. The ensuing six years of repressive rule by
Taylor, and the next war, were characterized by the same egregious abuses
against civilians as the earlier war, and set the country back further. Corinne Dufka, “Combating War Crimes in Africa,” Human Rights Watch testimony before
the US House International Relations Committee, Africa Subcommittee, June 25,
2004, http://www.hrw.org/en/news/2004/06/25/combating-war-crimes-africa.

[63]“The
executive secretary [of the Economic Community of West African States, ECOWAS], Mohamed Ibn
Chambas, said that announcing the charges against Charles Taylor as he was
about to open the peace talks had ‘put a damper on the
negotiations’ where President Taylor was making helpful offers
‘opening up tremendous opportunities’ to end the Liberian conflict.”
Virginie Ladisch, “Liberian President Indicted for War Crimes,”
Crimes of War Project news release, June 16, 2003,
http://www.crimesofwar.org/print/onnews/liberian-print.html (accessed May 13,
2009).

[74]
Taylor’s abusive regime in Liberia and ongoing support for rebels in
neighboring countries sparked the 1999 formation of a rebel group, the
Liberians United for Reconciliation and Democracy (LURD). A splinter group, the
Movement for Democracy in Liberia (MODEL), formed in 2003.

[77]
Hayner, ICTJ, “Negotiating peace in Liberia: Preserving the possibility
for Justice,” p. 9. The ceasefire did not hold, but it was still
important for ongoing negotiations.

[78]
Our argument is not that Taylor left office solely because of the unsealing of
the warrant. Rather, he left office once he was unable to procure arms and a
military defeat was imminent. However, the unsealing of his indictment made it
more difficult for him to secure support from the United States. Furthermore,
it caused his physical removal from peace negotiations underway in Ghana and
undermined the influence he could have yielded from Monrovia, thus allowing the
negotiations to reach a successful conclusion that did not include him. Also,
the indictment and mandate of the Special Court for Sierra Leone (which
included investigation of those providing logistical and military support to
Sierra Leonean rebel groups) increased pressure on those involved in the arms
trade. In this way, the indictment may have had bearing on Taylor’s
ability to secure arms.

[85]
United Nations Mission in Liberia, “Seventh progress report of the
Secretary-General on the United Nations Mission in Liberia,” S/2005/391,
June 16, 2005,
http://daccessdds.un.org/doc/UNDOC/GEN/N05/383/78/PDF/N0538378.pdf?
OpenElement (accessed May 14, 2009), para. 12.

[99]Prosecutor
v. Radovan Karadzic and Ratko Mladic, ICTY, Case No. IT-95-5-R61, IT
9518-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of
Evidence and Procedure, July 11, 1996.

[100]See
Vince Crawley, “Dayton a ‘Seminal Moment’ in Diplomacy,
State’s Burns Says,” Washington File, December 21, 2005
(“‘Dayton chased from power the despicable war criminals Radovan
Karadzic and Ratko Mladic …’ said under secretary of state Nicholas
Burns who was a member of the negotiating team in Dayton”),
http://www.globalsecurity.org/military/library/
news/2005/11/mil-051121-usia04.htm (accessed May 12, 2009).

[101]
Goldstone, “Justice as a Tool for Peacemaking,” 28N.Y.U.
Journal of International Law and Politics, p. 501.

[104]Ibid.
Two years later, however, Justice Onega called for an end to blanket amnesty
because “former rebels granted amnesty were going back into rebel
activities and committing greater crimes against humanity.” Josephine
Maseruka and Charles Ariko, “Scrap blanket amnesty, says Onega,” New
Vision (Kampala), August 14, 2007, http://www.newvision.co.ug/D/8/13/581394
(accessed May 26, 2009). See also The Uganda Human Rights Commission,
Fifth Annual Report to parliament for the period of January 2001-September
2002, http://www.uhrc.ug/uploads/Chapter3-8.pdf (accessed May 15, 2009), p. 56
(“The passing of the amnesty law showed the government’s desire
[to] implement a policy of reconciliation to establish peace, security and
tranquility”); and Amnesty International Report 2001, Uganda chapter,
reproduced at http://www.unhcr.org/refworld/pdfid/
3b1de3914.pdf (accessed May 15, 2009).

[107]Prosecutor
v. Kony, Otti, Odhiambo and Ongwen, ICC, Case No. ICC-02/04-01/05, Decision
on the prosecutor’s application for the warrants of arrest under Article
58, July 8, 2005. Lukwiya died in 2006 and Otti in 2007. Once the court
exercises its jurisdiction, it has the authority toprosecute crimes by
any individual, regardless of affiliation, provided the crimes were committed
after 2002.

[108]For a
summary of the many criticisms, see Tim Allen, Crisis States Research Center,
“War and Justice in Northern Uganda: An Assessment of the International
Criminal Court’s Intervention,” February 2005,
http://www.crisisstates.com/download/
others/AllenICCReport.pdf (accessed May 15, 2009), pp. 49-64.

[110]“UGANDA:
Amnesty and Peace groups urge ICC to probe government army too,” IRINnews,
February 3, 2004,
http://www.globalsecurity.org/military/library/news/2004/02/mil-040203-irin03.htm
(accessed May 15, 2009), quoting a statement issued by a chief negotiator of
the Acholi Religious Leaders’ Peace Initiative.

[111]
“Justice for a Lawless World? Rights and reconciliation in a new era of
international law,” IRIN In-Depth, July 2006,
http://www.irinnews.org/pdf/in-depth/RightsAndReconciliationPart1.pdf (accessed
May 15, 2009), p. 72.

[113]Cassandra
Veney, “Between the Devil and the Deep Blue Sea: Internally Displaced
Women and Girls in Liberia and Uganda and the Role of the International
Community,” Journal of International Women’s Studies, vol. 7
(May 2006), p. 214; Adam O’Brien, “The impact of international
justice on local peace initiatives: The case of Northern Uganda,”
International Crisis Group (ICG) expert paper for International conference:
Building a Future on Peace and Justice, June 2007,
http://www.crisisgroup.org/home/index.cfm?id=4927 (accessed June 18.2009).

[115]
Ibid.; Frank Nyakairu, “Uganda: Victims Want Special Court for
Kony,” Monitor (Kampala), August 30, 2007,
http://allafrica.com/stories/200708291083.html (accessed May 18, 2009); and
Refugee Law Project, “ICC statement: position paper on the announcement
of formal investigations of the Lord’s Resistance Army by the Chief
Prosecutor of the International Criminal Court and its implications on the
search for peaceful solutions to the war in northern Uganda,” July 28,
2004, http://www.refugeelawproject.org/archive/2004/RLP.ICC.investig.pdf
(accessed May 15, 2009), pp. 7-9. Despite the calls for traditional justice, a
survey (and Human Rights Watch’s own research) indicates only a small
percentage of people in northern Uganda believe that traditional justice
mechanisms are the most appropriate mechanism for dealing with those
responsible for human rights violations. Patrick Vinck et al., “Research
Note on Attitudes about Peace and Justice in Northern Uganda,” Human
Rights Center at UC Berkeley report, August, 2007,
http://hrc.berkeley.edu/pdfs/Uganda-survey-research-note.pdf (accessed May 18,
2009). See also Allen, Crisis States Research Center, “War and Justice in
Northern Uganda,”p. 87 (“Many individuals we interviewed are very
interested in the punishment of Kony and his commanders, and forgiveness is by
no means as prevalent as is asserted by some activists and interest
groups.”).

[116]Refugee
Law Project, “ICC statement: position paper,” July 28, 2004.

[117]Human
Rights Watch has called for the ICC Office of the Prosecutor to look into
crimes by all sides, and if it determines that abuses by the government forces
do not meet the criteria for ICC cases, to encourage the national authorities
to investigate and prosecute them. See, for example, “ICC: Investigate
All Sides in Uganda,” Human Rights Watch news release, February 4, 2004,
http://www.hrw.org/en/news/2004/02/04/icc-investigate-all-sides-uganda
(“‘Human Rights Watch has documented many shocking
abuses by the LRA in Uganda,’ said Richard Dicker, director of the
International Justice program at Human Rights Watch. ‘But the ICC
prosecutor cannot ignore the crimes that Ugandan government troops allegedly
have committed.’”). See also Human Rights Watch, Courting
History: The Landmark International Criminal Court’s First Years, 1-56432-358-7,
July 2008, http://www.hrw.org/sites/default/files/reports/icc0708_1.pdf, p. 42,
which recognizes that as a result of the prosecutor’s failure to
investigate these crimes or adequately explain why he is not doing so,
“the prosecutor’s work in Uganda is perceived by many of those in
affected communities as one-sided and biased.”

[118]Payam
Akhavan, “The Lord’s Resistance Army Case: Uganda’s
Submission of the First State Referral to the International Criminal
Court,” American Journal of International Law, vol. 99 (April
2005), p. 404; Nick Grono and Adam O’Brien, “Justice in Conflict?
The ICC and Peace Processes,” in Nicholas Waddell and Phil Clark, eds., Courting
Conflict? Justice, Peace and the ICC in Africa (London: Royal African
Society, March 2008), pp. 15-16; and O’Brien, ICG, “The impact of
international justice on local peace initiatives.” See also Gareth Evans,
“Justice, Peace and the International Criminal Court,” International
Crisis Group presentation to the Second Public Hearing of the Office of the
Prosecutor, September 25, 2006, http://www.crisisgroup.org/
home/index.cfm?id=4431&l=1 (accessed May 18, 2009).

[131]O’Brien,
ICG, “The impact of international justice on local peace
initiatives.” See also Grono and O’Brien, “Justice in
Conflict? The ICC and Peace Processes,” in Waddell and Clark, eds., Courting
Conflict? Justice, Peace and the ICC in Africa, pp. 15, 19; and Evans, ICG,
“Justice, Peace and the International Criminal Court.” Ironically,
shortly before these peace talks, Museveni had again offered LRA leader Kony
amnesty. “U.S. Position on LRA Amnesty,” US Department of State
press release, http://northernuganda.usvpp.gov/lraamnesty.html (accessed May
19, 2009); and Frank Nyakairu, “Uganda: Museveni amnesty to Kony illegal
- ICC,” Monitor, July 6, 2006,
http://www.afrika.no/Detailed/12493.html (accessed May 18, 2009). This offer,
however, did not become the focus of accountability discussions in Juba.
Negotiations instead centered on the possibility of national
alternatives—including the use of traditional justice measures—to
trial by the ICC.

[133]O’Brien,
ICG, “The impact of international justice on local peace
initiatives;” Grono and O’Brien, “Justice in Conflict? The
ICC and Peace Processes,” in Waddell and Clark, eds., Courting
Conflict? Justice, Peace and the ICC in Africa, p. 17; Paul Seils,
“The Impact of the ICC on Peace Negotiations,” expert paper for
International conference: Building a Future on Peace and Justice, June 2007;
and Refugee Law Project “Only Peace can restore the confidence of the
displaced,” 2nd edition, October 2006,
http://www.refugeelawproject.org/others/RLP.IDMC2.pdf (accessed May 18, 2009),
p. III (noting that “the range of people involved in these [2006 peace]
processes to date, and the level of media coverage, has been qualitatively
different from earlier attempts”). See also Allen, Crisis States Research
Center, “War and Justice in Northern Uganda,” pp. 58-59.

[134]Agreement on Accountability and Reconciliation
between the Government of the Republic of Uganda and the Lord’s
Resistance Army/Movement, Juba, Sudan, June 29, 2007, paras. 4.1-4.2, 6.1-6.2;
and Annexure to the Agreement on Accountability and Reconciliation between the
Government of the Republic of Uganda and the Lord’s Resistance
Army/Movement on 29th June 2007, Juba, Sudan, February 19, 2008,
paras. 7, 10-14.

[135]For a more detailed discussion of these
issues, see Human
Rights Watch, Benchmarks
for Justice for Serious Crimes in Northern Uganda: Human Rights Watch Memoranda
on Justice Standards and the Juba Peace Talks, May 2007 – February
2008, http://www.hrw.org/legacy/pub/2008/ij/uganda_memos_cover.pdf.

[136]Uganda,
Sudan, and the Democratic Republic of Congo launched a joint operation on
December 14, 2008, against the LRA. Due to poor planning and logistical
challenges, the operation failed to apprehend LRA leaders indicted by the ICC.
The LRA responded by killing at least 865 civilians and abducting several
hundred people. See, The Christmas Massacres: LRA attacks on Civilians in
Northern Congo, 1-56432-438-9, February 2009,
http://www.hrw.org/sites/default/files/reports/
drc0209web_0.pdf.

[137]United
Nations Security Council, Report of the Secretary-General to the Security
Council on the protection of civilians in armed conflicts, UN Doc. S/2004/431,
May 28, 2004, http://www.reliefweb.int/rw/lib.nsf/db900sid/LHON-634JZY/$file/
UNGA_Protection_civilians_Jun2004.pdf?openelement (accessed May 27, 2009),
para. 55.

[139]The
Taliban is a movement started by religious students (talibs) from the
Pashtun areas of eastern and southern Afghanistan who were educated in
traditional Islamic schools in Pakistan.

[140]
Agreement on Provisional Arrangements in Afghanistan Pending the
Re-Establishment of Permanent Government Institutions (“Bonn
Agreement”), December 5, 2001,
http://www.un.org/News/dh/latest/afghan/afghan-agree.htm (accessed April 23,
2009); and Joe Havely, “The loya jirga: A very Afghan gathering,” CNN,
June 11, 2002, http://edition.cnn.com/2002/
WORLD/asiapcf/central/06/10/afghan.loyajirga/index.html (accessed April 23,
2009). The selection process for the Emergency Loya
Jirga which took place in May-June 2002, was conducted in two stages. During
the first stage, candidates were elected in their home districts by traditional
local shuras, or councils; during the second stage, these candidates attended a
regional election where they chose a smaller number of delegates from among
themselves to attend the loya jirga in Kabul. See Procedures for the Elections
of the Members of the Emergency Loya Jirga, UN Assistance Mission in
Afghanistan, http://www.globalpolicy.org/component/content/article/178/33093.html
(accessed May 29, 2009), arts. 6-11.

[141]Procedures for the Elections of the Members of the
Emergency Loya Jirga, art. 14(4).

[146]Such
interference with the delegate selection process violated the loya
jirga’s express prohibition of “[a]ll forms of coercion,
intimidation, bribery, corruption, use of force and weapons during the
elections.” See Procedures for the Elections of the Members of the
Emergency Loya Jirga, art. 15.

[156]Abdul
Waheed Wafa, “Karzai Enlists Former Warlord as Running Mate,” New
York Times, May 5, 2009,
http://www.nytimes.com/2009/05/05/world/asia/05afghan.html?_r=1&scp=1&sq=vice%20president%20warlord%20afghanistan&st=cse
(accessed May 6, 2009); and Meo, “Afghan Warlords Poised to Take Up
Power,” Independent.

[157]Human
Rights Watch, “Killing You is a Very Easy Thing for Us,” pp.
10-11.

[159]
Paul Anderson, “Afghan War Criminals Still Unpunished,” BBC News
Online, December 9, 2003, http://news.bbc.co.uk/1/
hi/world/south_asia/3301335.stm (accessed May 29, 2009), quoting Andrew Wilder
of the Afghanistan Research and Evaluation Unit, an independent research
organization based in Kabul.

[162]Whitmont,
“Winter in Afghanistan: Travels Through a Hibernating War,” Monthly.

[163]
See, for example, International Crisis Group, “Policing in Afghanistan:
Still Searching for a Strategy,” December 18, 2008,
http://www.crisisgroup.org/home/index.cfm?id=5824&l=1 (accessed April 24,
2009) (“there is a general perception in Afghanistan that lawlessness is
on the rise”), p. 1.

[168]
Afghan Independent Human Rights Commission, “A Call for Justice: A Report
on National Consultations on Transitional Justice in Afghanistan,” January
2005. According to the survey (4,151 Afghan respondents), 94 percent found
justice for past crimes to be either “very important” (75.9
percent) or “important” (18.5 percent). In addition, almost half
believed that war criminals should be brought to justice “now.”

[171]
Many commanders and troops were trained by US, UK, and Pakistani experts on the
use of rocket and artillery systems. Footage from the period shows that when
they wanted to, Hezb-e Islami forces could precisely aim artillery. However,
the prolonged timeframe in which attacks took place, their scope, and continued
inaccuracy indicated that Hezb-e Islami and Hekmatyar were deliberately
targeting Kabul as a whole entity to kill and terrorize civilians. Human Rights
Watch, Blood-Stained Hands, pp. 41-42.

[175]Human
Rights Watch, Backgrounder on Afghanistan: History of the War, October
2001, http://www.hrw.org/legacy/
backgrounder/asia/afghan-bck1023.htm.

[176]The
relationship between Hekmatyar and the Taliban is complicated, and not believed
currently to be close. Peter Lee, “The Worst-Best Hope in Afghanistan:
Meet Gulbuddin Hekmatyar,” Counterpunch, March 9, 2009,
http://www.counterpunch.org/
lee03092009.html (accessed April 29, 2009).

[184]
Human Rights Watch, Democratic Republic of Congo – Renewed Crisis in
North Kivu, vol. 19, no. 17(A), October 2007,
http://www.hrw.org/reports/2007/drc1007/drc1007web.pdf, p. 59. Despite the
government’s policy of appeasing human rights abusers, an August 2008
survey by the Berkeley-Tulane Initiative on Vulnerable Populations found that
in eastern DRC 85 percent of the population believes that it is important to
hold those who committed war crimes accountable and that accountability is
necessary to secure peace. Patrick Vinck, Phuong Pham, Suliman Baldo, and
Rachel Shigekane, “Living With Fear: A Population-Based Survey on
Attitudes About Peace, Justice, and Social Reconstruction in Eastern Democratic
Republic of Congo,” August 2008, http://hrc.berkeley.edu/pdfs/LivingWithFear-DRC.pdf
(accessed May 20, 2009), p. 2.

[185]Anita
Powell, “Congo ex-rebels accused of rape and killings,” Associated
Press, May 18, 2009 (citing reports by UN peacekeeper commanders in the DRC
that the former rebels are now committing human rights violations as part of
the Congolese Army).

[186]Many
of the deaths were due to hunger and lack of medical care, others due to direct
violence. Benjamin Coghlan et al., International Rescue Committee and Burnet
Institute, “Mortality in the Democratic Republic of Congo: An Ongoing
Crisis,” January 2008,
http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf (accessed
May 20, 2009), pp. ii, 16.

[187]Amnesty
Decree-Law [Democratic Republic of Congo], Journal Officiel de la RépubliqueDémocratique du Congo¸ No. 03-001 of 15 April
2003, http://www.unhcr.org/refworld/docid/47305aae2.html (accessed May 20,
2009); Amnesty Law [Democratic Republic of Congo], No.
05/023 of 19 December 2005, http://www.unhcr.org/refworld/docid/47305d032.html
(accessed May 20, 2009). In May 2009 the DRC parliament passed another amnesty
law for armed groups in North and South Kivu, providing for similar amnesty
provisions as the 2005 law but extending it to 2009. The law has not yet been
signed by President Joseph Kabila. See “Amnesty law for DR Congo
militias,” BBC News Online, May 7, 2009,
http://news.bbc.co.uk/2/hi/africa/
8037891.stm (accessed May 20, 2009).

[188]Human
Rights Watch, Democratic Republic of Congo −
War Crimes in Kisangani: The Response of Rwandan-backed Rebelsto the
May 2002 Mutiny, vol. 14, no. 6(G), August 2002,
http://www.hrw.org/legacy/reports/2002/drc2/DRC0802.pdf, p. 2. The UN later put
the figure at 163. See also “Death Toll in Congo Raid,” New York
Times, July 17, 2002, http://www.nytimes.com/2002/07/17/world/death-toll-in-congo-raid.html
(accessed May 20, 2009).

[194]At
this writing, killings continued in Ituri with at least two militia groups
continuing to fight the Congolese army. There has been considerably less
violence since 2007 than in previous years. See “Top UN official signals
improvement, tough challenges in eastern DR Congo,” UN News Service,
April 9, 2009, http://www.un.org/apps/news/
story.asp?NewsID=30442&Cr=democratic&Cr1=congo (accessed May 20, 2009);
Médecins Sans Frontières, “DRC: LRA Attacks’
‘Lasting Effect,’” May 18, 2009,
http://www.doctorswithoutborders.org/news/article.cfm?id=3626&cat=voice-from%20the%20field&ref=home-sidebar-right
(accessed May 20, 2009).

[199]“D.R. Congo: Army Should Not Appoint War Criminals,” Human
Rights Watch news release; and Human Rights Watch, The Curse of Gold,
pp. 27-34.

[200]See,
for example, “DR Congo warlord generals accused,” BBC News
Online, January 14, 2005, http://news.bbc.co.uk/2/hi/
africa/4174811.stm (accessed June 3, 2009), quoting Information Minister Henri
Mova: “Now we need peace in our country and we decided to appoint them
because we can’t condemn them before judgement;” “D.R. Congo: Army Should Not Appoint War Criminals,” Human
Rights Watch news release.

[201]The
problem seemed to be acknowledged by presidential spokesman Kudura Kasong who
stated, “The big dream of all warlords is to be a general, educated or
not, and this is a big problem.” “DR Congo warlord generals
accused,” BBC News Online.

[202]Human
Rights Watch interview with United Nations official involved in the
negotiations (name withheld), Goma, July 2006.

[208]The UN
special rapporteur on the independence of judges and lawyers, after a visit to
the DRC in April 2007, concluded that interference by the executive and the
army in judicial proceedings was “very common” and that the
DRC’s judicial system was rarely effective, with human rights violations
generally going unpunished. UN Commission on Human Rights, Report of the
Special Rapporteur on the independence of judges and lawyers: Preliminary note
on the mission to the Democratic Republic of Congo, Leandro Despouy,
A/HRC/4/25/Add.3, May 24, 2007,
http://www2.ohchr.org/english/bodies/hrcouncil/docs/
4session/A.HRC.4.25.Add.3.pdf (accessed May 21, 2009), p. 3.

[209]“DRC:
Controversy Surrounds Certain Military Appointees,” IRINnews,
August 26, 2003. The UN special rapporteur indicated her unhappiness at seeing
Nkunda, who had been accused of crimes and human rights violations, being
appointed to government institutions. See “DRC: Three RDC-Goma officers
summoned before military court,” IRINnews¸ September 10,
2003, http://www.irinnews.org/PrintReport.aspx?ReportId=46037 (accessed May 21,
2009).

[210]The
new military leader called for the arrest of Nkunda and two other officers who
refused to attend the ceremony. “Congo’s army orders arrest of
three rebel officers,” Reuters, September 10, 2003.

[211]Human
Rights Watch, Briefing to the African Union Member States: Third Summit of
the African Union, July 2004,
http://www.hrw.org/legacy/backgrounder/africa/africanunion/africanunion0704.pdf,
p. 11.

[212]Those
who were targeted were Banyamulenge, Congolese people whose ancestors migrated
from Rwanda and Burundi generations ago to the high plateau area in South Kivu,
and who are often referred to as Congolese Tutsi.

[213]Human
Rights Watch also documented serious crimes committed by the Congolese army
during the Bukavu crisis. See Human Rights Watch, D.R. Congo: War Crimes in
Bukavu, June 2004, http://www.kongo-kinshasa.de/dokumente/ngo/
hrw_110604_en.pdf.

[215]The
warrants for Nkunda and Jules Mutebesi included war crimes and crimes against
humanity. They were issued by the government but were not supported by appropriate
substantive judicial investigation. Implementation of the warrants without
additional legal procedures would not have met necessary fair trial standards.
Human Rights Watch, Renewed Crisis in North Kivu, pp. 59-60.

[219]He
claimed that other ethnic groups too had a role in his new movement. See, for example, Congrès National pour la Défense du
Peuple, “Cahier de Charges du Congrès National pour la
Défense du Peuple (CNDP),” October 2006, condensed version
available in French at
http://www.cndp-congo.org/index-fr.php?subaction=showfull&id=1220528453&archive=
&start_from=&ucat=6& (accessed May 21, 2009).

[221]In a
report to the UN Security Council in June 2007, the UN secretary-general noted
with concern increased recruitment of children in the DRC and Rwanda for
service with Nkunda’s units. He remarked that “commanders loyal to
Laurent Nkunda” and Nkunda himself actively obstructed efforts to remove
children from military ranks. He called for the arrest of Nkunda and others involved
in recruiting and using child soldiers and asked MONUC to assist in making such
arrests if necessary. Human Rights Watch, Renewed Crisis in North Kivu,
pp. 49-54; and United Nations Security Council, “Report of the
Secretary-General on children and armed conflict in the Democratic Republic of
the Congo,” S/2007/391, June 28, 2007,
http://daccessdds.un.org/doc/UNDOC/GEN/N07/390/16/PDF/N0739016.pdf?OpenElement
(accessed May 21, 2009), paras. 22-23, 29, 72.

[223]John
Kanyunyu and Joe Bavier, “Congo rebel leader Nkunda arrested in
Rwanda,” Reuters, January 23, 2009,
http://www.reuters.com/article/worldNews/idUSTRE50M14N20090123 (accessed June
26, 2009). To date, no charges have been brought against him. The DRC requested
his extradition to stand trial for war crimes and crimes against humanity, but
without the establishment on an ad-hoc court or major reform to the DRC
judicial system, Nkunda is unlikely to get a fair trial there.

[229]
“Congo ex-Rebel ‘working with UN,’” BBC News Online,
April 29, 2009, http://news.bbc.co.uk/2/hi/africa/8023978.stm (accessed May 21,
2009). The government’s inclusion of abusive leaders in the army has also
set the stage for further atrocities by its own forces. Human Rights Watch has
documented how since late January 2009 soldiers from the integrated Congolese
armed forces have attacked villages, killing at least 19 civilians and raping
more than 143 women and girls. See “DR Congo: Hold Army to Account for
War Crimes,” Human Rights Watch news release, May 19, 2009,
http://www.hrw.org/en/
news/2009/05/19/dr-congo-hold-army-account-war-crimes.

[231]See,
for example, Human Rights Watch, The Unindicted, describing how the
police chief in Prijedor, Simo Drljaca, implicated in crimes during the war,
continued to serve as police chief after Dayton. See Prosecutor v. Stakic,
ICTY, Case No. IT-97-24-T, Judgment, July 31, 2003 (describing Drljaca’s
role in Prijedor during the war.)

[234]See
Office of the High Representative and EU Special Representative,
“Decisions Relating to individuals indicted for war crimes in the former
Yugoslavia,” http://www.ohr.int/decisions/removalssdec/archive.asp
(accessed May 19, 2009).

[235]Bosnian
Serb Prime Minister Milorad Dodik does not fall into this category.

[236]
Abidjan Peace Accord, between the Government of the Republic of Sierra Leone
and the Revolutionary United Front of Sierra Leone, November 30, 1996, art. 14
(“To consolidate the peace and promote the cause of national
reconciliation, the Government of Sierra Leone shall ensure that no official or
judicial action is taken against any member of the RUF/SL in respect of
anything done by them in pursuit of their objectives as members of that
organization up to the time of the signing of this Agreement. In addition,
legislative and other measures necessary to guarantee former RUF/SL combatants,
exiles and other persons, currently outside the country for reasons related to
the armed conflict shall be adopted ensuring the full exercise of their civil
and political rights, with a view to reintegration within the framework of full
legality.”).

[237]
The AFRC formalized an alliance with the RUF in June 1997 when they invited the
RUF to join the government.

[239]Article
8 provides, “It is considered essential that unconditional immunities and
guarantees from prosecution be extended to all involved in the events of 25 May
1997 with effect from 22 April 1998.” The Economic Community of West
African States, Conakry peace plan, ECOWAS six-month peace plan for Sierra
Leone, October 23, 1997.

[241]Human
Rights Watch, We’ll Kill You if You Cry, p. 12. The efforts at
justice that had been made prior to 1999—charging RUF leader Sankoh and
others with treason—should be differentiated from proceedings that are
and are seen to be fair and impartial. The treason trials were politically motivated
and not seen as credible.

[247]
Other major factors contributing to the breakdown of the various peace
agreements included the continued support for the RUF by Charles Taylor and the
relative inability of the government to defend itself from rebel attacks.

[248]
Article IX, entitled “Pardon and Amnesty,” provides, “1. In
order to bring lasting peace to Sierra Leone, the Government of Sierra Leone
shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and
free pardon. 2. After the signing of the present Agreement, the Government of
Sierra Leone shall also grant absolute and free pardon and reprieve to all
combatants and collaborators in respect of anything done by them in pursuit of
their objectives up to the time of the signing of the present Agreement.”
The Lomé Peace Accord, Peace Agreement Between the Government of Sierra
Leone and the Revolutionary United Front of Sierra Leone, July 7, 1999.

[256]
Some have argued that the 1999 peace agreement would not have been possible
without the amnesty provision. See, for example, Hayner, ICTJ,
“Negotiating peace in Sierra Leone,” p. 35 (“there is
virtually unanimous agreement now that a peace agreement would not have been
possible without an amnesty”). However, the 1996 and 1997 amnesties made
negotiations on the matter—already being conducted virtually at gunpoint—
more difficult. With increased recognition that amnesty for serious
international crimes is not acceptable and victims’ corresponding
expectations for justice, the 1996 amnesty may not
be as feasible today, even under the strained circumstances.

[258]The
armed liberation struggle in Angola ended with a negotiated agreement to end
500 years of Portuguese colonial rule on January 15, 1975. The Alvor Agreement,
signed by Portugal and three nationalist movements, was intended to provide a
framework for a peaceful transfer of power. It included a general amnesty
provision. Apart from the larger civil war, beginning in 1975 a separatist
guerilla movement, the Front for the Liberation of the Enclave in Cabinda
(FLEC), has been fighting for independence of Cabinda, which today supplies
half of Angola’s oil. The Angolan government claims the war ended in
2006, when the government signed a peace agreement with a faction of the rebel
group. That agreement also included an amnesty. However, sporadic attacks
continue in the area because only a faction of FLEC signed the agreement and
the root causes of the conflict were not tackled. See “Angola: End
Torture and Unfair Trials in Cabinda,” Human Rights Watch news release,
December 10, 2008,
http://www.hrw.org/en/news/2008/12/05/angola-end-torture-and-unfair-trials-cabinda;
Human Rights Watch, Angola – Between War and Peace in Cabinda: A Human
Rights Watch Briefing Paper, December 23, 2004,
http://www.hrw.org/legacy/backgrounder/africa/angola/2004/1204/cabinda122104.pdf,
p. 1, and Angola – “They put me in the Hole:” Military
Detention, Torture and Lack of Due Process in Cabinda, 1-56432-503-2, June
22, 2009, http://www.hrw.org/en/reports/2009/06/22/they-put-me-hole-0.

[259]
South African forces occupied parts of extreme southern Angola and, along with
the US, supported the National Union for the Total Independence of Angola
(UNITA). Cuba and the Soviet Union backed the government Movement for the
Popular Liberation of Angola (MPLA). After the repeal of the Clark amendment
prohibiting covert aid to UNITA in 1985, the US resumed assistance to UNITA;
between 1986 and 1991 US covert aid to UNITA totaled about $250 million. See
Human Rights Watch/Africa, Angola: Arms Trade and Violations of the Laws of
War since the 1992 Elections (New York: Human Rights Watch, 1994),
http://www.hrw.org/sites/default/files/reports/ANGOLA94N.PDF, pp. 48-59. The US
provided aid to UNITA despite public reports of human rights abuses including
torture and extrajudicial executions. See, for example, Craig Whitney and Jill
Jolliffe, “Ex-Allies Say Angola Rebels Torture and Slay
Dissenters,” New York Times, March 11, 1989, http://query.nytimes.com/gst/fullpage.html?res=950DEFDE1639F932A25750C0A96F948260&sec=&spon=&pagewanted=1
(accessed May 18, 2009).

[261]Amnesty Law [Angola], No.
24/1991 of 12 July 1991, reproduced in unofficial translation at http://www.unhcr.org/refworld/
docid/3ed8a0174.html (accessed May 19, 2009). This states in the preamble and
article 1 that amnesty is granted by the People’s Assembly in
order “to create psychological conditions needed to introduce a
multiparty democracy,” and applies “to all crimes against the
internal security of the State and all others [other crimes] so related”
committed up to the signing of the Bicesse Accords. It covered common crimes
committed by military personnel and civilians as well as most military crimes.
Ibid., arts. 2-3.

[264]Human
Rights Watch/Africa, Arms Trade and Violations of the Laws of War since the
1992 Elections, pp. 14-17. Further evidence of the parties’
confidence that they could commit human rights abuses without repercussions is
the January 22, 1993 massacre of an estimated 4,000 to 6,000 civilians of
Bakongo ethnicity by Angolan military, national police, and civilians in what
is known as “Bloody Friday.” Although the government condemned
those who took part, little action was taken to hold perpetrators to account.
The massacre was in response to rumors of a plot to kill the Angolan president.
See Immigration and Refugee Board of Canada, “Angola: Update on the
KIMVUKA, MAKO and CANGOBAK organizations and situation of the Bakongo and
treatment by the government authorities,” AGO36914.E , April 18, 2001,
http://www.unhcr.org/refworld/
docid/3df4bdf838.html (accessed May 19, 2009).

[269]Human
Rights Watch/Africa, Between War and Peace, p. 2. See also The Lusaka
Protocol, between the Government of the Republic of Angola (GRA) and the Union
for the Total Independence of Angola (UNITA), Lusaka, Zambia, November 15,
1994, reproduced at
http://www.c-r.org/our-work/accord/angola/lusaka-protocol.php (accessed May 19, 2009).

[270]The Lusaka Protocol, Annex 6, sec. I(5), provided that
“all Angolans should forgive and forget the offences resulting from the
Angolan conflict and face the future with tolerance and confidence.
Furthermore, the competent institutions will grant an amnesty ... for illegal
acts committed by anyone prior to the signing of the Lusaka Protocol, in the
context of the current conflict.”

[271]Amnesty Law [Angola], No.
18/1994 of 10 November 1994, November 15, 1994, reproduced in unofficial
translation at http://www.unhcr.org/refworld/docid/3ae6b4da17.html (accessed
May 19, 2009). The amnesty was effective as of the date of the signature of the
Lusaka Protocol.

[272]
The United States, Russia, and Portugal (members of the observing troika in the
peace process) had lifted national prohibitions on military sales to the
government in summer 1993, thereby legitimizing the government’s
unilateral decision to opt out of the arms embargo clause in the Bicesse
Accords. Human Rights Watch, Angola Unravels, p. 92. As a result, the
government was able to use oil to finance hundreds of millions of dollars worth
of weapons purchases. Using money from smuggled diamonds, UNITA also conducted
numerous cross-border sanctions-busting operations bringing in new weapons and
supplies both overland and on secret flights from neighboring countries.

[273]This
period was marked by sporadic fighting and violations of the protocol by both
sides. Forced conscription and recruitment of child soldiers continued after
the 1994 agreement as did occasional attacks on civilians. See Human Rights
Watch/Africa, Between War and Peace, pp. 27-28; and Human Rights Watch
Children’s Rights Project, Children in Combat, vol. 8, no. 1(G),
January 1996, http://www.hrw.org/reports/pdfs/c/crd/general961.pdf, p. 7. Both
sides continued to lay landmines after the Lusaka Protocol. Human Rights
Watch/Africa, Between War and Peace, pp. 32-33.

[275]
Even if a case was referred to a civilian court, sanctions were unlikely
because civilian courts were virtually nonexistent. See United Nations
Development Program and Angolan Government, “Judicial Reform,” www.sdnp.undp.org/perl-bin/ttf/
proposal.pl?do=get_proposal_doc&prodoc_document_id=2 (accessed May 19, 2009), p. 3 (“only 13
municipal courts are operating, for a total of 164 municipalities, and around
12 million habitants. This indicator shows by itself the limited access to
Justice in Angola”).

[276]Amnesty Law
[Angola], No. 11/1996 of 9 May 1996, available in unofficial translation at http://www.unhcr.org/refworld/
docid/3ae6b4df44.html (accessed May 19, 2009), preamble and art. 1.

[281]On
January 27, 1999, the Angolan National Assembly passed a resolution declaring
Jonas Savimbi a “war criminal and international terrorist.” It
called for legal procedures leading to Savimbi and his direct collaborators
being held accountable in criminal and civil law, both nationally and
internationally. On July 24 the Angolan authorities issued an arrest warrant
for Savimbi on charges including rebellion, sabotage, murder, and torture. The
warrant also accused Savimbi of kidnapping, robbery, and the use of
explosives—including planting landmines at sites used by civilians. UN
Secretary-General Kofi Annan criticized the warrant, saying it was
“wrong” and that “you make peace with enemies, and to make
peace you have to have communications, either directly or through third
parties.” Human Rights Watch, World Report 2000, Angola chapter,
http://www.hrw.org/legacy/wr2k/Africa.htm#P288_98792, pp. 29-30. See also
“UN Chief Criticizes Arrest Warrant for UNITA Leader,” South
African Press Association/Agence France-Presse, July 27, 1999, reproduced at
http://www.undp.org.za/docs/
news/1999/nz0727a.html (accessed May 19, 2009).

[284]Had Savimbi been brought to justice following
peace talks in 1989, 1991, or 1994, rather than being granted amnesty, it is
possible that the conflict would have ended earlier and numerous lives would
have been saved.

[285]Angolan
Government’s Peace Plan, Luanda, Angola, March 13, 2002, reproduced in
unofficial translation by Conciliation Resources at
http://www.c-r.org/our-work/accord/angola/angolan-government-plan.php (accessed May 20, 2009): “The government will
propose to the National Assembly the approval of an amnesty for all crimes
committed within the framework of the armed conflict, the aim of this measure
being to ensure the requisite legal and political guarantees for promoting and
achieving the process of national reconciliation.”

[286]Memorandum
of Understanding: addendum to the Lusaka Protocol for the cessation of
hostilities and the resolution of the outstanding military issues under the
Lusaka Protocol, reproduced in unofficial translation by Conciliation Resources
at http://www.c-r.org/our-work/accord/angola/memorandum-of-understanding.php (accessed May 20, 2009), chapter II, art. 2.1:
“The Government guarantees, in the interest of peace and national
reconciliation, the approval and publication, by the competent organs and
institutions of the State of the Republic of Angola, of an Amnesty Law for all
crimes committed within the framework of the armed conflict between the UNITA
military forces and the Government.” United Nations
Under-Secretary-General and Special Advisor on Africa Ibrahim Gambari reported
to the UN Security Council on April 23 that, in signing the memorandum relating
to amnesty, he had entered a reservation that the UN did not recognize any
amnesty as applicable to genocide, crimes against humanity, and war crimes,
reinforcing that these amnesties were not acceptable under international law.
“Secretary-General’s Special Adviser Briefs Security Council on
Angola: Says Recent Agreement Creates Brighter Prospects for Lasting
Peace,” UN press release, SC/7372, April 23, 2002,
http://www.un.org/News/Press/docs/2002/
sc7372.doc.htm (accessed May 20, 2009).

[290] Muraheleen
is a Misseriya word for “travelers” and originally referred to
young armed men on horseback who would accompany and guard the family
livestock. Although the muraheleen were originally of Misseriya ethnicity and
were known for their role accompanying the military supply train through Bahr
el Ghazal to Wau town, over time the term muraheleen became used to refer to
any northern Arab ethnic militia deployed in southern Sudan. See Human Rights
Watch, Famine in Sudan, 1998: The Human Rights Causes (New York:
Human Rights Watch, 1999), http://www.hrw.org/legacy/reports/1999/sudan/, pp.
27-29. In November 1989, a few months after the National Islamic Front came to
power through a military coup, the new government promulgated the Popular
Defense Forces Act by which preexisting tribal militia such as the muraheleen
were incorporated into the armed forces, in effect as paramilitaries. See Human
Rights Watch/Africa, Behind the Red Line: Political Repression in Sudan (New
York: Human Rights Watch, 1996),
http://www.hrw.org/legacy/reports/1996/Sudan.htm, pp. 274-75; and Famine in
Sudan, p. 29.

[291] See, for
example, Human Rights Watch, Famine in Sudan, pp. 101-106; Sudan, Oil
and Human Rights, p. 68; and Human Rights Watch/Africa, Civilian
Devastation: Abuses by All Parties in the War in Southern Sudan, (New York:
Human Rights Watch, 1994), p. 72. The captured civilians and property were war
booty used as a financial incentive for the impoverished militia to participate
in the conflict. See Human Rights Watch, World Report 2001, Sudan
chapter, http://www.hrw.org/legacy/
wr2k1/africa/sudan.html (citing the government’s deliberate decision not
to prosecute or even record the identity of the abductors or forced labor
owners).

[297] Human
Rights Watch/Africa, Civilian Devastation, pp. 2-3; and Behind the
Red Line, pp. 340-42. At the October 1994 South Sudan Independence
Movement/Army (SSIM/A) convention at Akobo, amnesty for all persons in SSIM/A
custody was declared. This included amnesty for SSIA rebel military commanders
who were being held or had been convicted in connection with the fighting among
Nuer groups in February 1994, which had resulted in the burning and destruction
of many villages in Upper Nile and in the deaths of almost 1,400 civilians. One
of the Lou Nuer commanders, Gordon Kong Banypiny, who had been sentenced for
his role in attacking civilians and destroying civilian property, was released
as a result of the amnesty and then later went on to commit more crimes,
including taking 11 relief workers hostage in February 1995. Human Rights
Watch/Africa, Behind the Red Line, pp. 341-42. On April 27, 1995, rival
factions of the SPLA signed the Lafon Declaration agreeing to a ceasefire between
their forces. The agreement also provided “a general and unconditional
amnesty covering the period from 28/8/1991 to 27/4/95, to all sides of the
split so that nobody may be prosecuted or punished for actions committed during
this period.” The rebels remained unaccountable to the civilian
population that they governed, and Human Rights Watch documented gross abuses
against civilians committed by the SPLM, including murder, looting, and rape,
long after the Lafon Declaration. Human Rights Watch, World Report 1998,
Sudan chapter, http://www.hrw.org/legacy/
worldreport/Africa-12.htm#P972_267375.

[298]The drought and famine of 1984-85 heightened
tensions in Darfur as Arab and Zaghawa nomads traveled southward into Fur areas
in search of areas to graze. The Arabs were also aggrieved over their alleged
under-representation in the regional government and their being neglected in
distribution of famine relief supplies. The loss of animals from drought led to
increased banditry. The land disputes and political tension (further
complicated by the presence of Chadian rebels and support from Libya) escalated
into full-scale civil war in the late 1980s. In 1988 and early 1989 numerous
villages were burned, hundreds killed, and thousands left homeless. Requests
for protection from the army were rebuffed by army officers. After the Fur
acquired some arms, the raids turned into a pitched battle and the government
convened a peace conference in June 1989 to settle the disputes. The resulting
peace agreement in Darfur contained a general amnesty provision, though it
included some reparations (in cattle) to be made by each side. Fighting resumed
a few months later after the government once again failed to neutrally monitor
and implement the peace agreement. This time, in addition to attacks by
militia, Sudanese army units became actively involved on the side of the Arabs.
In early 1990 several villages were destroyed and wells contaminated. Africa
Watch (now Human Rights Watch/Africa), Sudan: The Forgotten War in Darfur
Flares Again, vol. 2, no. 11(A), April 1990, pp. 1-7.

[301]The
Sudan Liberation Army/Movement (SLA/M) emerged in February 2003 calling for
power sharing with the central government and for an end to tribal militias. A
second rebel group, the Justice and Equality Movement (JEM), emerged later in
2003. In part the emergence of rebel groups was a result of allegations in the
Fur, Zaghawa, and Masalit communities that the Sudanese government was pursuing
a policy of support to Arab nomadic groups based on a national agenda of
Arabization and the creation of an “Arab belt” that would claim the
lands of “non-Arab” ethnic groups in the region. The timing of the
Darfur rebellion was also almost certainly linked to the peace negotiations
between the Sudanese government and the SPLA, which were ongoing in Kenya and
would divide political power and oil revenues. See Human Rights Watch, Empty
Promises? Continuing Abuses in Darfur, Sudan, August 11, 2004,
http://www.hrw.org/legacy/backgrounder/africa/sudan/2004/
sudan0804.pdf, pp. 6-11.

[308]“Darfur:
Ban welcomes Sudanese ceasefire, plan to disarm militias,” UN News
Service, November 12, 2008, http://wwan.cn/apps/news/story.asp?NewsID=28915&Cr=Darfur&Cr1=
(accessed May 10, 2009) (estimating that from 2003 to 2008, 300,000 people were
killed and 2.7 million were displaced).

[309]The
presumption of impunity was also reflected in other earlier agreements between
the government and rebel factions in the north. In 1996 the government signed a
Political Charter with the head of the SPLA rival faction, the South Sudan
Independence Movement. The Charter provided for a referendum “to
determine the political aspirations of the people of southern Sudan.” One
year later, the Political Charter was incorporated into a peace agreement
between the SSIM and the government. A number of other small rebel factions
also sign the 1997 Khartoum Peace Agreement. See Human Rights Watch, Sudan,
Oil and Human Rights, pp. 171-174. The Peace Agreement was premised upon
and incorporated a general amnesty proclamation. Khartoum Peace Agreement of
April 21, 1997, reproduced at www.simonrgd.com/THE%20SUDAN.htm (accessed May
14, 2009), General Principles (3), Chapter Six (i-k), Annex 2. Until the end of
the war, and during peace negotiations, the government continued its policy of
arming tribal militias to use as proxy fighting forces, and using scorched
earth tactics. Rebels too committed serious abuses over these years, including
summary executions and destruction of villages.

[310]Human
Rights Watch, Human Rights Accountability Must Be Part of North-South Peace
Agreement.

[318]“European
Values and National Interests in the enlarging Europe,” Keynote Speech by
Carla Del Ponte, former ICTY prosecutor, at the International Conference:
Values and Interests in International Politics, Talinn, October 30, 2006,
http://www.riigikogu.ee/public/Riigikogu/Valissuhted/del_ponte301006.doc
(accessed June 29, 2009).

[326]
In Kenya, as in Rwanda, Burundi, and the Balkans, politicians exploited ethnic
divisions to preserve and expand their own power. Drawing on the reserve of
ethnic hatred that they fomented, politicians mobilized supporters to carry out
acts of targeted violence with impunity. See Human Rights Watch, Playing
with Fire: Weapons Proliferation, Political Violence, and Human Rights in Kenya,
(New York: Human Rights Watch, 2002),
http://www.hrw.org/legacy/reports/2002/kenya/, p. 4.

[345]The
tactic of resolving political differences among Hutu at the expense of Tutsi is
one that characterized Rwandan politics since at least 1973, when “Public
Safety Committees” and other groups began a campaign of intimidation and
assaults on Tutsi after there was a growing split between Hutu of the north and
Hutu of the south. Ibid., p. 40.

[346]
Hutu fear was exacerbated by the slaughter of tens of thousands of Hutu in
neighboring Burundi in 1972, 1988, and 1991, and they dreaded killings on a
similar scale by the RPF. No one was held accountable for these crimes. See
Ibid., p. 65. For more on the violence in Burundi, see Chapter VI.C of this
report.

[347]These
attacks were similar to attacks against Tutsi in the 1960s. Following a series
of attacks on Rwanda by Tutsi refugees between 1961 and 1967, Hutu officials
led reprisal attacks on Tutsi still within the country, killing 20,000 and
forcing over 300,000 to flee abroad out of fear they would be targeted again.
No one was held accountable for these crimes. Human Rights Watch, Leave None
to Tell the Story, pp. 38-40.

[349]The government removed several officials from
their posts in areas where attacks had occurred, particularly after foreign
criticism of the killings and after the installation of the coalition
government when officials opposed to Habyarimana could influence appointment of
personnel. But, more discreetly, national authorities also removed local
officials who had protected Tutsi or tried to prevent the spread of violence
against them. Africa Watch (now Human Rights Watch/Africa), Beyond the
Rhetoric: Continuing Human Rights Abuse in Rwanda, vol. 5, no. 7(A), June
1993, reproduced at http://www.unhcr.org/
refworld/docid/3ae6a8017.html (accessed 7 May 2009), pp. 18-19.

[351]The
members of this commission were Human Rights Watch, the International
Federation of Human Rights Leagues (Paris), the International Center for Human
Rights and Democratic Development (Montreal), and the Interafrican Union of
Human and Peoples' Rights (Ouagadougou).

[353]Another factor contributing to the Rwanda
slaughter was international tolerance for the impunity associated with the
assassination of Burundian President Melchior Ndadaye in 1993 by Tutsi army
officers. In the aftermath of the slaughter, thousands were killed but the
international community did little to demand accountability for those abuses.
For more on Burundi, see Chapter VI.C of this report.

[357]For
further discussion of the cycles of violence and impunity in Burundi, see,
generally, Stef Vanderginste, Transitional Justice for Burundi: A Long and
Winding Road, presented at Building a Future on Peace and Justice Workshop,
June 25-27, 2007, http://www.peace-justice-conference.info/download/WS10-Vandeginste%20report.pdf
(accessed May 16, 2009).

[358]The
Ganwa, often referred to as “a princely class,” are descendants of
previous kings of Burundi. They are considered by some to be a Tutsi subgroup, though
others consider them a separate ethnic group.

[359]Mwambutsa
refused to name a Hutu prime minister despite the fact that Hutu won a decisive
majority in the legislative elections that followed the assassination.

[369]United
Nations Security Council, “Letter dated 25 July 1996 from the
Secretary-General addressed to the President of the Security Council”
(enclosing the final report of the International Commission of Inquiry for
Burundi), S/1996/682, August 22, 1996,
http://daccess-ods.un.org/TMP/7231199.html (accessed June 29, 2009), para. 490.

[372]Human
Rights Watch, Proxy Targets,p. 19. For example, in early
November 1998 government troops killed at least 100 people in Mutambu commune
near Bujumbura after rebels killed five people in the area. Shortly after
rebels also attacked and murdered dozens near Bujumbura and in the south of the
country. Human Rights Watch, World Report 2000, Burundi chapter,
http://www.hrw.org/legacy/wr2k/Africa-01.htm#TopOfPage. Some members of the
Burundian forces trained and armed Tutsi civilians and used them to further
their own interests and ethnic agenda. See Human Rights Watch, To Protect
the People: The Government-sponsored “self-defense” program in Burundi,
vol. 13, no. 7(A), December 2001, http://www.hrw.org/legacy/
reports/2001/burundi/burundi1201.pdf, p. 4. Hutu civilians feared that
“Tutsis were being trained to shoot them.” Ibid., p. 14. Tutsi
militia used the opportunity to take revenge on the Hutu populations for the
death of their family members and loss of property. Human Rights Watch, Proxy
Targets, p. 18.

[378]BBC
World Service Trust, “Ready to Talk About the Past: A Survey of Knowledge
and Attitudes toward Transitional Justice in Burundi,” December 2008,
http://www.communicatingjustice.org/files/content/file/Project%20News/Burundi.pdf
(accessed June 29, 2009).

[379]UN
Security Council, “Report of the assessment mission on the establishment
of an international judicial commission of inquiry for Burundi,”
S/2005/158, March 11, 2005, http://www.ictj.org/static/Africa/Burundi/s2005.158.kalomoh.eng.pdf
(accessed May 18, 2009), para. 12.

[380]Neil
J. Kritz, The United States Institute of Peace, “The Problem of Impunity
and Judicial Reform in Burundi,” 1996,
http://www.grandslacs.net/doc/0817.pdf (accessed May 18, 2009), p. 1.

[383]
In Serbia, Croatia, and Bosnia and Herzegovina, the issue of the judicial
system’s capacity to try war crimes domestically and the willingness to
cooperate with the International Criminal Tribunal for the former Yugoslavia
are linked to the European Union accession process. This has been an important
motivator for change.

[387]Letter
dated 17 June 2002 from the Secretary-General addressed to the President of the
Security Council, UN Doc. S/2002/678, June 19, 2002,
http://daccessdds.un.org/doc/UNDOC/GEN/N02/434/47/IMG/N0243447.pdf?OpenElement
(accessed May 28, 2009) (“UNSG Statement to the Security Council”);
Statement by the President of the Security Council, UN Doc. S/PRST/2002/21,
July 23, 2002, http://daccessdds.un.org/doc/UNDOC/GEN/N02/491/47/PDF/
N0249147.pdf?OpenElement (accessed May 28, 2002) (“Security Council
Presidential Statement”).

[388]
UNSG Statement to the Security Council. Recommended reforms included minimizing
the risk of partiality of judges and corruption, improving witness protection
measures, training in conducting war crimes investigations and judicial
proceedings, improving financial resources and efficiency, and improving compatibility
of national substantive law with international law. For a description of the
effect of legal reform on domestic courts, see Human Rights Watch, Still
Waiting: Bringing Justice for War Crimes, Crimes against Humanity and Genocide
in Bosnia and Herzegovina’s Cantonal and District Courts,
1-56432-341-2, July 2008,
http://www.hrw.org/sites/default/files/reports/bosnia0708_1.pdf, pp. 16-17.

[397]Human
Rights Watch interview with US government official (name withheld), Belgrade,
March 30, 2007; and Orentlicher, Shrinking the Space for Denial, p. 47.
There have not been many referrals to Serbia because the Serbian defendants are
too high-profile to be tried domestically. Also many of the referrals have been
to the territory where the crimes occurred, which is mainly Bosnia.

[398]
Orentlicher, Shrinking the Space for Denial, p. 47 (citing a survey conducted
by the Organization for Security and Co-operation in Europe, the Belgrade
Centre for Human Rights, and Strategic Marketing Research).

[399]Tatjana
Tagirov, “Confidence is the Key to Cooperation,” Justice in
Transition, September 2006 (Special Edition), p. 56,quoting Serbian
War Crimes Prosecutor Vladimir Vukcevic: “[A]t the moment when I accepted
this post I did so also because of the fact that the only alternative, if we do
not want to organize trials, is The Hague Tribunal ... . We are a European country
in which there are able people, judges and prosecutors, prepared for such work
… . My first challenge was to form a team of prosecutors … who will
demonstrate to both The Hague and the international and domestic public, that
we are capable and prepared to face the problems of war crimes.”

[402]“Memorandum
of understanding on access to Documents through the electronic disclosure suite
between the Office of the Prosecutor of the ICTY and the Office of the War
Crimes Prosecutor of the Republic of Serbia,” reprinted in Center for
Transitional Processes (Belgrade), Justice in Transition, September 2006
(Special Edition), pp. 152-153.

[407]Law on
the Statute of the International Criminal Court and on the Prosecution of
Criminal Acts against International Law on War and Humanitarian Law, Narodne
novine (Official Gazette of the Republic of Croatia), No. 175/2003,
November 4, 2003, art. 13(2).

[411]See
Human Rights Watch, Law and Reality: Progress on Judicial Reform in Rwanda,
1-5643-566-8, July 2008, http://www.hrw.org/sites/default/files/reports/rwanda0708webwcover.pdf,
pp. 26-28 (citing Organic Law No. 07/2004 of 25/04/2004 Determining the
Organization, Functioning and Jurisdiction of Courts, arts. 6, 64, 143, and
168; and Law No. 06 bis/2004 of 14/04/2004 on Statutes for Judges and other
Judicial Personnel, arts. 8 and 22).

[412]
Ibid., pp. 32-33 (citing Official Journal of the Republic of Rwanda, July 30,
2004, Law No. 13/2004 of 17/5/2004 concerning the Code of Criminal Procedure,
arts. 64, 89, 96; and Law No. 20/2006 of 22/4/2006 modifying and completing the
law No. 13/2004 of May 17, 2004 on the criminal procedure, art. 19).

[413]Ibid.,
p. 31. The death penalty was replaced by life imprisonment and life
imprisonment with special conditions, which was only defined as keeping a
prisoner in “isolation.” Official Journal of the Republic of
Rwanda, July 25, 2007, Organic Law No. 31/2007 of July 25, 2007 regarding the
Abolition of the Death Penalty.

[415]
In part, defense witnesses refuse to testify out of fear that anyone who
testifies against the government position risks being perceived as making common
cause with accused persons and thus being charged with promoting
“genocide ideology.” The government also has been unwilling to
pursue cases against Rwandan Patriotic Army soldiers for crimes against
humanity committed between 1994 and 1995. See Human Rights Watch, Law and
Reality, pp. 76-77, 89-94.

[420]Annexure
to the Agreement on Accountability and Reconciliation between the Government of
the Republic of Uganda and the Lord’s Resistance Army/Movement on 29th
June 2007, Juba, Sudan, February 19, 2008, paras. 7, 10-14. Notably, while some
close to the peace process have argued that the special division would only try
ICC suspects, the agreement does not suggest any such limitation on its
mandate.

[432]
Decree of the Establishment of a Specialized Prosecution for Crimes against
Humanity,” September 18, 2005. See also Office of the High Commissioner
for Human Rights, “Second Periodic Report of the United Nations High
Commissioner for Human Rights on the Human Rights Situation in Sudan,”
January 27, 2006, http://www.ohchr.org/Documents/Countries/
sudanjanuary06.pdf (accessed May 27, 2009), p. 29.

[433]See,
for example, “Sudan to try three people on Darfur crimes,”
Associated Press, March 7, 2007, http://www.sudantribune.com/spip.php?article20618
(accessed May 27, 2009); “Sudan to try Janjaweed militia leader for war
crimes,” Agence France-Presse,October 15, 2008,
http://www.france24.com/en/20081015-sudan-janjaweed-militia-leader-kosheib-war-crimes-sudan-darfur
(accessed May 27, 2009) (“A Sudanese special prosecutor investigating
atrocities in Darfur has decided there are grounds to try a leader of the
feared Janjaweed militia ... . Idris Suleiman, deputy head of Sudan's mission
in Cairo, told AFP that state-backed Sudanese militia leader Ali Kosheib will
be brought to court in Darfur at a date set by a judge, ‘likely in the
next week’”).

[438]In
August 2008 the president of the CAR, Francois Bozize, submitted a letter to
the UN secretary-general asking the United Nations to intercede in any possible
ICC investigations of crimes in the north of the country, on the basis that the
courts of the Central African Republic are competent to try cases involving
acts committed during the period covered by the amnesty laws. Letter from
Francois Bozize to Ban Ki-moon, August 1, 2008, on file with Human Rights
Watch. See also Human Rights Watch, World Report 2009, Central African
Republic chapter,
http://www.hrw.org/sites/default/files/related_material/car.pdf.

[444]Office
of the Prosecutor, “OTP statement in relation to events in Kenya,”
February 5, 2008, http://www.icc-cpi.int/NR/
rdonlyres/1BB89202-16AE-4D95-ABBB-4597C416045D/0/ICCOTPST20080205ENG.pdf
(accessed May 27, 2009); and “ICC Prosecutor reaffirms that the situation
in Kenya is monitored by his office,” ICC press release, February 11,
2009,
http://www.icc-cpi.int/NR/rdonlyres/06455318-783E-403B-8C9F-8E2056720C15/279793/
KenyaOTPpubliccommunication20090211.pdf (accessed May 27, 2009).

[447]
Judie Kaberia, “The Kenya house Speaker recalled Parliament to save a
year old grand coalition gov’t from the brink of collapsing,” Majimbo
Kenya, January 8, 2009, http://majimbokenya.com/home/2009/01/08/the-kenya-house-speaker-recalled-parliament-to-save-a-year-old-grand-coalition-govt-from-the-brink-of-collapsing
/ (accessed May 27, 2009); and Waki Report, p. 476 (recommending that
“The International Crimes Bill 2008 be fast-tracked for enactment by
Parliament to facilitate investigation and prosecution of crimes against
humanity”).

[458]Ibid,
pp. 4-5. In 1991 the National Commission of Truth and Reconciliation (known as
the Rettig Commission) published its 2,000-page report. This report and a
successor report published in 1996 established an official record of 3,197
persons who lost their lives due to human rights violations under the military
regime. It did not have a mandate to investigate torture or other abuses. The
political climate made it impossible to implement many of the Rettig Commission’s
most important recommendations for the protection of human rights. Ibid.

[465]The
government shrank from taking steps that would remove hurdles to
Pinochet’s prosecution in Chile. On November 11, 1998, the foreign
minister asked the Supreme Court to designate one of its members as a
“special judge” to take over investigations into Pinochet’s
case begun by an appeals court judge, but the Supreme Court refused. The
government also requested the Council for the Defense of the State to intervene
as a party to the case, which would have given the government greater ability
to participate in the case and also to raise its profile, but the council
refused to be a party to the case. Human Rights Watch, When Tyrants Tremble,
pp. 29-30.

[469]For
example, the Chilean Supreme Court ordered that local investigations into the
murder of Gen. Carlos Prats, Pinochet’s predecessor, in Argentina be
reopened in response to an Argentine extradition request and named suspects who
were charged and arrested in March 2003. See Naomi Roht-Arriaza, The
Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia:
University of Pennsylvania Press, 2005), p. 162.

[481]Because
of a clerical error, Cavallo had been excluded from the initial Spanish
indictments. A separate arrest warrant was issued for him in late August 2000.
Roht-Arriaza, The Pinochet Effect, pp. 141-145.

[484]
Human Rights Watch, World Report 2003, Argentina chapter,
http://www.hrw.org/legacy/wr2k3/americas1.html; and “Argentina: Decision
not to Extradite Astiz Condemned,” Human Rights Watch news release,
August 15, 2001,
http://www.hrw.org/en/news/2001/08/15/argentina-decision-not-extradite-astiz-condemned.
This stance is contrary to fundamental principles of universal and other bases
of jurisdiction, which do not limit prosecution of criminal offenses to the
locale where the crimes took place.

[489]Human
Rights Watch, World Report 2006 (New York: Human Rights Watch, 2006),
Argentina chapter, http://www.hrw.org/
legacy/english/docs/2006/01/18/argent12203.htm. In an opinion to the court,
Attorney General Nicolas Becerra argued for a finding of unconstitutionality,
stressing the link between present-day violence and Argentina’s legacy of
human rights violations: “the violence which still breaks out within some
institutions and is now invading the daily life of our country in a generalized
way must be halted by a clear message that the rule of law is in force.”
Human Rights Watch, World Report 2003, Argentina chapter,
http://www.hrw.org/legacy/wr2k3/americas1.html.

[498]See,
for example, Testimony of Milan Babic, former Prime Minister/President of the
government of the self-declared Serbian Autonomous District of Krajina, later
the so-called Republic of Serbian Krajina. Prosecutor v. Milosevic,
ICTY, Case No. IT-02-54, Trial Transcript, November 20, 2002,
http://www.icty.org/x/cases/slobodan_milosevic/trans/en/021120ED.htm (accessed
May 22, 2009), p. 13116 (describing how Milosevic told him to describe the
Krajina as coming out in favor of the Federal Republic of Yugoslavia, not
Serbia, “so that his direct links and links with Serbia would not be
seen, links to what was happening in Krajina”).

[500]Prosecutor
v. Milosevic, ICTY, Case No. IT-02-54, Exhibit 667 (SDC minutes). See also
Letter from Branislav Kuzmanovic, Deputy Minister of Defense, to the Secretary
of the Republic of the Serbian Government, dated November 1, 1991, in which it
is proposed that a meeting relating to a report on assisting Serb areas in
Croatia be discussed at a “session closed to the public” given its
“level of confidentiality.” Prosecutor v. Milosevic, ICTY,
Case No. IT-02-54, Exhibit 352, tab 4, para. a.

[501]See
Rules of Procedure and Evidence of the ICTY, IT/32/Rev. 38, June 13, 2006,
http://www.un.org/icty/legaldoc-e/basic/rpe/IT032Rev38e.pdf (accessed June 1,
2009), Rule 54 bis. The proceedings to obtain documents from Serbia and
Montenegro were primarily confidential. See, for example, Prosecutor v.
Milosevic, ICTY, Case No. IT-02-54, Preliminary Order on Prosecution
Application for an Order Pursuant to Rule 54 bis Directing Serbia and
Montenegro to Comply with Outstanding Requests for Assistance and Prosecution
Second Motion for Further Action in Relation to Previous Rule 54 bis
Applications, December 16, 2005; and Prosecutor v. Milosevic, ICTY, Case
No. IT-02-54, Decision on Prosecution Application for Further Action in
Relation to Previous Rule 54 bis Applications, October 31, 2005.

[502]In his
cross-examination of Morten Torkildsen, Milosevic noted the April 25, 1993
Official Gazette of the Republika Srpska Krajina, number 3, which on page 205
publicly states that additional funds from the FRY are used as a source of
finances. Prosecutor v. Milosevic, ICTY, Case No. IT-02-54, Trial
Transcript, April 11, 2003, http://www.icty.org/x/cases/
slobodan_milosevic/trans/en/030411ED.htm (accessed May 26, 2009), pp. 19117-19.

[510]
Goldstone, “Justice as a Tool for Peace-making,” N.Y.U. Journal
of International Law and Politics, p. 489. Former prosecutor Louise Arbour
has also recognized the impact of guilty pleas on public perception, stating
that “when Jean Kambanda [former Rwandan prime minister] pleaded guilty,
his public admission of guilt was a major blow to the revisionism which was
already implanting itself, not so much in Rwanda, but in neighboring communities.”
Louise Arbour, “Friedmann Award Address: Litigation Before the ICC: Not
If and When, But How?” Columbia Journal of Transnational Law, vol.
40 (2001), p. 6.

[512]
Orentlicher, Shrinking the Space for Denial, pp. 59-61. See also Mirko
Klarin, “The Impact of the ICTY Trials on Public Opinion in the Former
Yugoslavia,” Journal of International Criminal Justice, vol. 7
(2009), pp. 91-94.

[516]See
Helena Cobban, “Think Again: International Courts,” Foreign
Policy, March/April 2006, p. 22-28. The impact of ICTY prosecution on
deterring crimes is a hotly contested one. In the midst of the Kosovo conflict,
the ICTY prosecutor reminded Serbian officials of their obligations under
international law and warned them of their accountability with the hope that it
might have an impact on the severity of the crimes. “Statement by the
Prosecutor,” ICTY press release, CC/PIU/391-E, March 31, 1999,
http://www.un.org/icty/pressreal/p391e.htm (accessed May 29, 2009).

[526]
Ibid. Militia leaders have changed their attitude toward child recruitment in a
way that indicates new awareness that recruitment and utilization of child
soldiers is a crime. In some cases, they have made efforts to cover up use of
child soldiers by telling children to lie about their age or by sending
children away. The awareness of the illegality of use of child soldiers in
conflict also manifested itself in January 2008 peace talks in Goma when
language about demobilization of child soldiers was altered so as not to be
seen as an admission of having child soldiers for fear that it could lead to
prosecution. Although the new awareness has so far resulted in a reluctance to
demobilize children for fear of criminal prosecution and in other efforts to
conceal their use (sometimes called the “Lubanga effect”),
children’s rights advocates interviewed by ICTJ concluded that the
overall effect of the ICC’s action was positive because of its
educational impact. Ibid., p. 32.

[527]Ibid.
The ICTJ points out that in the year following Lubanga’s March 2006
arrest, recruitment of child soldiers in the DRC decreased by 8 percent (citing
United Nations Security Council, Report of the Secretary-General on children
and armed conflict in the Democratic Republic of the Congo, S/2007/391, June
28, 2007, p. 5). However, other reports indicate recruitment of child soldiers
continued at its normal rate in 2007. Recruitment declined when it was made
clear by the UN and EU that calculation of demobilization benefits would not
include child soldiers.